Les Placements Germain Gauthier Inc v Hong Pian Tee

• Jurisdiction: Singapore
• Judge: Choo Han Teck JC
• Judgment Date: 17 July 2001
• Neutral Citation: [2001] SGHC 185
• Docket Number: Suit No 229 of 2000 (Registrar's
• Date: 17 July 2001
• Published date: 19 September 2003
• Year: 2001
• Plaintiff Counsel: Murugaiyan Sivakumar and Parveen Kaur Nagpal (Azman Soh & Murugaiyan)
• Citation: [2001] SGHC 185
• Defendant Counsel: Manjit Singh and Sree Govind Menon (Manjit & Partners)
• Court: High Court (Singapore)
• Subject Matter: Whether leave can be implied,Conclusive effect of foreign judgment,Statement of claim,Whether issue of summary judgment decided previously,Inapplicability of enforcement of foreign judgment statues,Striking out,Foreign judgments,Conflict of Laws,No reasonable cause of action disclosed,Whether plaintiff entitled to sue on foreign judgment alone,Enforcement,Civil Procedure,Unconditional leave to defend,Summary judgment,Whether plaintiff entitled to appeal against order granting unconditional leave to defend

Judgment:

1. There were two appeals before me from decisions of the assistant registrar below. The first was an appeal by the defendant against the dismissal of his application to strike out the plaintiff’s claim. The second was an appeal by the plaintiff against the assistant registrar’s order granting unconditional leave to the defendant to defend.The facts and issues were enmeshed and, consequently, the appeals were dealt with conveniently, at the same time.

2. The plaintiff is a Canadian registered company. Germain Gauthier was a shareholder and director of the plaintiff company. On 25 April 1995 the plaintiff loaned a sum of C$350,000 to a Singapore company called Wiraco in which Germain Gauthier’s son, Pierre, was a shareholder and director. The defendant’s wife was also a shareholder and director of Wiraco. One month prior to the loan the defendant signed a letter (dated 20 March 1995) addressed to Germain Gauthier stating that:

"In consideration of your agreement to extend a loan of C$350,000 to WIRACO, I Hong Pian Tee (hereinafter known as "P.T.Hong") I/C No: 0274819/C of 48 Leedon Road, Singapore 1026, hereby irrevocably guarantee the due payment of the said sum of C$350,000 upon expiry of 24 months from the date of the loan.

Though I am surety only for WIRACO yet as between us, I shall be deemed to be the principal debtor for the monies extended by you, the payment of which is hereby guaranteed and accordingly, I confirm that my obligation shall not be affected or diminished in any way by any act or omission by WIRACO."

3. When the Wiraco did not make payment the plaintiff sued the defendant in the Superior Court of Montreal in Canada to recover the debt. The defendant challenged the jurisdiction of that court but his challenge was dismissed. There was no appeal against that order by the defendant. After a three-day trial in which the defendant appeared and contested the claim, the court found in favour of the plaintiff and granted judgment in its favour. The defendant appealed, but was unsuccessful.

4. The enforcement of foreign judgment statutes in Singapore are inapplicable to the present case because the Canadian court was not a scheduled court under our legislation concerning the enforcement of foreign judgments. The plaintiff was therefore, obliged to commence a writ action against the defendant based on the Canadian judgment for the purposes of enforcement. Having done so, it applied for a summary judgment. Assistant registrar Vivian Wong, allowed the application and gave judgment against the defendant. The appeal by the defendant went before a judge in chambers on 29 August 2000. There is no record of any argument before the court, but the orders of the court were, however, extracted by the defendant and reads as follows:

"1. The judgment of the learned assistant registrar Ms. Vivian Wong given on 14 August 2000 be set aside/reversed with no order as to costs.

2. Leave be granted to the Plaintiffs to amend their Statement of Claim and to file a fresh Order 14 application.

3. The Defendant undertakes not to object to the Plaintiffs’ fresh Order 14 application, save on merits.

4. By consent, there be no order as to costs on the amendments to the Statement of Claim."

There is a minor oddity of no great significance but it ought to be mentioned nonetheless. The first order of the judge was minuted as "The judgment of the learned assistant registrar Ms. Vivian Wong given on 14 August 2000 be set aside with no order as to costs." However, the extracted copy approved by both parties included the word "reversed" as an alternative, and appearing next to the words "set aside".

5. Mr. Sivakumar, counsel for the plaintiff, stated that counsel for the defendant began his submission by saying that a letter of guarantee dated 20 March 1995 was not pleaded and therefore the claim was inadequate. The judge then made the above orders after suggesting to Mr. Sivakumar that the plaintiff amends its statement of claim by setting out the underlying contract and not merely relying on having obtained the Canadian judgment. The plaintiff subsequently did so, and consequently, filed a fresh application for summary judgment. The hearing before the judge in chambers on 29 August 2000 is relevant because an issue arose as to whether the plaintiff is precluded from relying on the Canadian judgment in its appeal before me. Counsel for the defendant, Mr. Manjit Singh submitted that when a judge had already adjudicated and reversed an order for summary judgment made by an assistant registrar no appeal is permissible under the Supreme Court of Judicature Act. I shall revert to this submission shortly.

6. In the meantime, on 29 January 2001, the defendant applied before assistant registrar Tan Boon Heng to strike out the amended claim on the ground that it disclosed no cause of action. The defendant’s case was that the letter of guarantee of 20 March 1995 was issued by the defendant to Germain Gauthier and not the plaintiff. Mr. Sivakumar then successfully applied to adjourn the striking out hearing and obtained leave to make further amendments the statement of claim. This time, the plaintiff amended the claim to include the reference to a loan document dated 25 April 1995 which was not referred to in this suit, but was the subject matter of the trial in Canada.

7. The application to strike out was reinstated for hearing after the amendments were made. The striking out and order 14 applications were heard by the assistant registrar Toh Han Li who dismissed the defendant’s application to strike out. AR Toh who also dismissed the plaintiff’s application for summary judgment and granted unconditional leave to the defendant to defend. The appeals before me concern the abovesaid decisions of the assistant registrar Toh.

8. Mr. Manjit Singh submitted before me that the re-amended statement of claim still discloses no cause of action because there was no privity of contract between the plaintiff and the defendant. The loan document of 25 April 1995 was signed by the plaintiff as the lender, WIRACO as the borrower, and the defendant described only as...