Panwell Investments Pte Ltd v Lau Ee Theow

JurisdictionSingapore
JudgeWarren Khoo L H J
Judgment Date14 September 1996
Neutral Citation[1996] SGHC 203
Docket NumberDistrict Court Appeal No 88 of 1994,District Court Appeal No 15 of
Date14 September 1996
Published date19 September 2003
Year1996
Plaintiff CounselSoh Chin Chuan (Soh & Wong)
Citation[1996] SGHC 203
Defendant CounselGlenn Joethy and Magdalene Tan (CW Lee & Peng)
CourtHigh Court (Singapore)
Subject MatterCivil Procedure,Whether defendant entitled to enter default judgment,Judgments and orders,Whether application should be made by summons for directions rather than summons-in-chambers,Counterclaim based substantially on defence,Not to be applied as a matter of course in all cases,Default judgment,Failure to file reply and defence to counterclaim,Mode of application for judgment under O 19 r 7 of Rules of Subordinate Court,Counterclaim,Rule allowing judgment in default of defence or defence to counterclaim merely permissive

This is yet another procedural appeal from a decision of the district court in this long and protracted saga of litigation between the parties in District Court Suit 8631/92. This time it was the plaintiffs` appeal from a decision of the learned District Judge Mr Khoo Oon Soo allowing the defendant to enter judgment on his counterclaim pursuant to an order I had made in an earlier appeal in DCA 77/94.

A reference to the facts and the history of the proceedings is in order.
The plaintiffs are or were brokers in commodities and commodities futures. The defendant entered into two trading agreements dated 13 April and 25 July 1991 with the plaintiffs whereby an employee of the plaintiffs, one Anna Chong, was purportedly appointed as the defendant`s agent to buy and sell commodities futures contracts on the defendant`s behalf.

The trading agreements provided in cl 1 that the plaintiffs were authorised to execute the defendant`s orders and instructions for the purchase and sale of investments by any means they thought fit.
Clause 2 stated that the defendant had authorised Anna Chong as his agent to transmit and communicate his orders and instructions for such purchases and sales to the plaintiffs and that all orders and instructions communicated by the agent on behalf of the plaintiffs were binding on the plaintiffs and the plaintiffs shall be fully liable for all consequences therefrom.

It appears that pursuant to the 13 April 1991 trading agreement, the defendant made four deposits of various sums between 15 April and 31 May 1991 totalling $90,000.
By 25 June, his account showed a net loss (after taking the deposit into account) of $7,806.44. Under the 25 July 1991 agreement, two deposits were made in that month totalling $50,000. No transactions took place until 2 October, when two transactions were closed resulting in a net loss (after taking the deposits into account) of $25,679.79. The two net loss sums add up to the $33,486.23 claimed by the plaintiffs. The defendant alleges in his defence that he was induced by the misrepresentations of Anna Chong into entering into the April agreement. In respect of transactions alleged to have been undertaken under both agreements, the defendant alleges that the plaintiffs were in breach of their duty to manage his account and undertake transactions for him with reasonable care and skill and to act in good faith. He alleges that in breach of such duties, the plaintiffs traded excessively on the defendant`s account; they did so more for their own benefit in the way of commissions earned from the transactions than in the interest of the defendant. The defendant counterclaims for damages to be assessed and other reliefs.

The defence and counterclaim was filed on 21 September 1992.
The plaintiffs did not file their reply and defence to counterclaim within the time provided by rules of court. On 17 February 1994, that is nearly one and a half years after the service of the defence and counterclaim, the plaintiffs` solicitors sent a draft reply and defence to counterclaim to the defendant`s solicitors with a request for their consent to file it out of time. The defendant`s solicitors refused to give such consent. On 1 July 1994, the plaintiffs applied for leave to file it out of time. On 28 July 1994, the learned deputy registrar of the subordinates court dismissed the plaintiffs` application. From this ensued two parallel but different sets of proceedings which eventually led to two separate appeals to the High Court - DCA 88/94, dealt with by Amarjeet Singh JC, and DCA 77/94, dealt with by me.

Following the dismissal of the plaintiffs` application to file out of time, the defendant entered judgment for damages to be assessed in default of defence to counterclaim.
The plaintiffs failed to have this default judgment set aside, and appealed to the High Court in DCA 88/94. Separately, the plaintiffs attempted unsuccessfully to have the decision denying them leave to file out of time overturned. They appealed to the High Court in DCA 77/94. By all logic the two sets of proceedings should have been dealt with together, but for some reason they were not.

On 2 June 1995, the learned Amarjeet Singh JC allowed their appeal.
His Honour set aside the judgment in default of defence to counterclaim for reasons which I shall refer to later. On the next day, the plaintiffs purported to file their reply and defence to counterclaim. It was done while their appeal regarding leave to file out of time was still pending.

DCA 77/94 - Leave to file out of time

On 1 August 1995, the appeal in DCA 77/94 against the decision denying the plaintiffs leave to file out of time came before me. There was no reason for me to depart from the view taken below that the plaintiffs had not given a satisfactory explanation for the inordinate delay in filing the pleading. The appeal could have been dismissed on that ground alone. However, there was the lingering thought in my mind that if the plaintiffs were able to demonstrate merits in their case, then, despite the long delay, they might perhaps still be allowed leave to file out of time. On the other hand, it did appear to me that the reply and defence to counterclaim which they had filed following the decision of Amarjeet Singh JC was rather lacking in precision and particularity. Going on the assumption that a lack of precision and particularity in pleadings is often a reflection of a lack of merit in a litigant`s case, I sought explanations from plaintiffs` counsel on some of the allegations in the reply and defence to counterclaim, and it became apparent that some of the pleas that had been put forward had been put forward without adequate instructions. That would have fortified a decision to dismiss the appeal. However, I decided that, in the interests of justice, the plaintiffs should be given an opportunity to make good these deficiencies. I therefore gave the plaintiffs liberty to file an affidavit for that purpose and to put forward a revised draft reply and defence to counterclaim. What I had in mind was a fairly thoroughgoing recasting of that pleading in the light of the exchange which I had had with counsel over the existing one.

On 28 September 1995 the matter came back before me.
The plaintiffs had filed an affidavit by Anna Chong together with a draft amended reply and defence to counterclaim. Apart from a more detailed tabulation of the transactions alleged to have been done, the amended pleading differed from the original in only one material respect. While the original draft alleged that the defendant had been informed all along about the transactions undertaken by Anna Chong on his behalf because confirmations of the transactions were regularly sent to him, in the amended version there was added a further allegation that on 11 May 1991 the defendant had signed an instruction to the plaintiffs to send the confirmations to Anna Chong. The material part of the paragraph as amended read:

The defendant was always informed of the transactions relating to the account by way of confirmations of contracts and balance sheet sent by the plaintiffs to the defendant. Subsequently, by written
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4 cases
  • Singapore Telecommunications Ltd v APM Infotech Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 8 June 2011
    ...of defence) as both relate to automatic judgments where a liquidated claim is involved. In Panwell Investments Pte Ltd v Lau Ee Theow [1996] 3 SLR(R) 73 at [24], Warren Khoo J considered O 19 r 2 of the Rules and held that it was “clear from the authorities” that the rule allowing a plainti......
  • Zulkifli Baharudin v Koh Lam Son
    • Singapore
    • High Court (Singapore)
    • 11 May 1999
    ...SLR 832 (refd) Lee Kuan Yew v Vinocur John [1996] 1 SLR (R) 840; [1996] 2 SLR 542 (refd) Panwell Investments Pte Ltd v Lau Ee Theow [1995] 2 SLR (R) 520; [1995] 3 SLR 137 (distd) Saudi Eagle, The [1986] 2 Lloyd's Rep 221 (folld) Rules of Court (Cap 322,R 5, 1997 Rev Ed)O 2r 2, O 19rr 3, 7, ......
  • Panwell Investments Pte Ltd v Lau Ee Theow
    • Singapore
    • High Court (Singapore)
    • 14 September 1996
    ...reassigned to [1997] 1 SLR 469; [1996] SGHC 203 on 16 February [LawNet Admin Note: The citation for this case has been reassigned to [1997] 1 SLR 469; [1996] SGHC 203 on 16 February...
  • Transasia Private Capital Ltd v Todi Ashish
    • Singapore
    • High Court (Singapore)
    • 16 February 2021
    ...SLR 892 (folld) International Woollen Mills v Standard Wool (UK) Ltd [2001] 2 LRI 765 (refd) Panwell Investments Pte Ltd v Lau Ee Theow [1996] 3 SLR(R) 73; [1997] 1 SLR 469 (refd) Seagate Technology International v Vikas Goel [2016] SGHC 12 (folld) Singapore Telecommunications Ltd v APM Inf......
2 books & journal articles
  • A REVIEW OF DEVELOPMENTS IN SELECTED AREAS OF CIVIL PROCEDURE1
    • Singapore
    • Singapore Academy of Law Journal No. 1996, December 1996
    • 1 December 1996
    ...Ltd v Corsi Partners Ltd[1994] 2 Lloyd’s Rep 567, at p 581. 101 Ie, rule 5 of Ord 13 and rule 6 of Ord 19. 102 (1973) 117 SJ 876. 103 [1995] 3 SLR 137. 104 [1995] 3 SLR 137. 105 Panwell Investments Pte Ltd v Lau Ee Theow [1995] 3 SLR 137, at p 142 (the court accepted the views of Edmund Dav......
  • Civil Procedure
    • Singapore
    • Singapore Academy of Law Annual Review No. 2000, December 2000
    • 1 December 2000
    ...have not been adjudicated upon or made (Zulkifli Baharudin v Koh Lam Son[2000] 2 SLR 233). (Panwell Investments Pte Ltd v Lau Ee Theow[1995] 3 SLR 137 was distinguished on the basis that it involved claims other than a claim for unliquidated damages.) With regard to setting aside an interlo......

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