Poh Soon Kiat v Hotel Ramada Nevada trading as Tropicana Resort & Casino

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JC
• Judgment Date: 30 June 1999
• Neutral Citation: [1999] SGHC 174
• Docket Number: Originating Summons No 596 of 1999
• Date: 30 June 1999
• Published date: 19 September 2003
• Year: 1999
• Plaintiff Counsel: Hri Kumar (Drew & Napier)
• Citation: [1999] SGHC 174
• Defendant Counsel: Tan Lee Cheng (Lee Bon Leong & Co)
• Court: High Court (Singapore)
• Subject Matter: Civil Procedure,Whether may be set aside by another High Court of co-ordinate jurisdiction on ground of illegality,Judgments and orders,Regularly obtained judgment of High Court

: The applications

In this originating summons, the plaintiff (`Poh`) seeks the following orders:

(1) a declaration that the judgment entered against him in Suit No. 1838 of 1997 for US$368,462.47, interest and costs fixed at $6,500 is null and void;

(2) an order that the said judgment be set aside; and

(3) costs.

As a result of this originating summons commenced on 21 April 1999, bankruptcy proceedings against Poh by the defendants (`Hotel Ramada`) based on the same judgment were stayed by an assistant registrar on 23 April 1999 pursuant to a summons-in-chambers taken out on the same day as the originating summons. Hotel Ramada appealed against the assistant registrar`s order staying the bankruptcy proceedings and the appeal was adjourned to be heard with the originating summons.

Facts

On 15 October 1997, Hotel Ramada commenced Suit No 1838 of 1997 against Poh in respect of a debt arising out of a loan extended by the hotel to Poh.

The debt arose in the following manner. Hotel Ramada operates the Tropicana Resort and Casino in Las Vegas, Nevada. In November 1995, the casino hosted a dinner in Singapore to which Poh was invited. At the dinner, gambling chips worth US$50,000 were given to him by representatives of the casino for his use in Las Vegas. Chips worth US$5,000 were also given to Poh for his wife`s use. The casino promised to pay US$50,000 towards Poh`s airfare to Las Vegas and offered him credit facilities of up to US$2 million.

In February 1996, Poh visited the said casino at Hotel Ramada`s invitation and was permitted to gamble on credit there. The casino gave him a card which he had to present at the tables where he would be given the amount of gambling chips requested. Poh would sign a `marker` for the required quantity of chips and at the end of each day`s session, if he won at the tables, the markers he had signed would be returned to him for destruction. He would also be given a deposit slip for the amount of winnings. If he lost, the casino would retain the markers.

Poh`s sessions at the baccarat tables led to cumulative losses of US$360,000, the subject of the suit against him.

On 6 March 1998, Hotel Ramada succeeded in their application for summary judgment against Poh who then appealed to a judge in chambers. On 8 April 1998, the matter came before Chan Seng Onn JC who dismissed Poh`s appeal, apparently because of the decision of Chao Hick Tin J in Las Vegas Hilton Corporation t/a Las Vegas Hilton v Khoo Teng Hock Sunny [1997] 1 SLR 341 .

Upon advice from his solicitors as well as other solicitors he spoke to, Poh did not take the matter further. The learned judicial commissioner therefore did not need to explain his decision in writing.

The judgment against Poh was not satisfied to any extent and bankruptcy proceedings were therefore commenced against him on 8 January 1999. As indicated earlier, those proceedings have been stayed pending the determination of this originating summons.

According to Poh, a few weeks before 21 April 1999 (the date he affirmed his affidavit in this originating summons), he read in the newspapers reports about the court actions involving Star Cruise and Sun Cruises against the Overseas Union Bank (ie Suit No 432 of 1998 and Suit No 679 of 1998 both heard and decided by GP Selvam J in January and February 1999). Poh therefore asked his present solicitors to determine if the judgment entered against him was regular and whether he could apply to set it aside on the authority of GP Selvam J`s decisions.

His solicitors inspected the court file in Suit No 1838 of 1997 and could not locate any extracted order of court in respect of Chan Seng Onn JC`s dismissal of his appeal against summary judgment. Further, no order of court in respect of that decision was found among the papers handed over by his former solicitors to his present solicitors. Believing that the said order had not been extracted yet, his solicitors then wrote an eight-page letter on 18 March 1999 to the Registry requesting further arguments before Chan Seng Onn JC, citing, among other authorities, the decision of GP Selvam JC in Star Cruise Services Ltd v Overseas Union Bank Ltd and seeking to argue that the decision in Las Vegas Hilton erred on the issue that `loans` extended by casinos in circumstances such as those present here were recoverable in a court of law.

The next day, on 19 March 1999, Hotel Ramada`s solicitors wrote to inform Poh`s solicitors that the order dated 8 April 1998 had in fact been extracted. A copy of the said order was enclosed. A copy of the letter was sent to the Registrar.

Chan Seng Onn JC agreed to hear further arguments on 14 April 1999. On 26 March 1999, Poh`s solicitors wrote to the Registrar stating that, although Hotel Ramada`s solicitors took the position that the request for further arguments was misconceived as the order in question had been extracted, they would be submitting that the nature of the action entitled the learned judicial commissioner to review his order notwithstanding the extraction of the order of court. They asked that the appointed date (14 April 1999) be kept as they would be appearing before the learned judicial commissioner on the same day in respect of their notice of motion (for extension of time to appeal).

According to Poh`s counsel, Chan Seng Onn JC heard the parties on the merits of the case and made no order thus allowing his previous order to stand. The learned judicial commissioner also ordered Poh to pay costs of $2,000. When Chan Seng Onn JC heard the further arguments, the parties only had the ten-page oral judgment given by GP Selvam J on 3 February 1999 and did not have the benefit of the learned judge`s 100-page judgment delivered on 30 April 1999 (in Star Cruise ). The motion was subsequently withdrawn.

Poh states here he was informed by his solicitors that during the hearing, the learned judicial commissioner expressed the view that although the gaming took place in the casino, the gaming transactions might well have been entered into between Poh and other third parties and not the casino. The affidavits filed in the O 14 application did not address this issue. Poh asserts that his losses at the baccarat tables arose because of the gaming transactions between himself and the casino and no third party and that this fact is irrefutable. The judgment against him is said to be a nullity as it was given in contravention of s 6 of the Civil Law Act to recover winnings from a gaming or wagering contract and not to recover a loan.

Hotel Ramada did not file any affidavit in reply to Poh but relied on legal arguments only.

The arguments and my decision

The very novel arguments put forth by counsel for Poh flowed in the following manner. The distinction whether it was a debt between Poh and the casino or whether it was one between Poh and some third party was an important one. The first would come within the ambit of s 6(2) and the second would be under s 6(5) Civil Law Act. The facts before the learned judicial commissioner were however scanty and it was unclear which category the debt fell under. The learned judicial commissioner was said to have commented that it was unclear whether the facts before him were within the purview of s 6(2) or of s 6(5) Civil Law Act and therefore saw no grounds to disturb his earlier decision. Counsel took further instructions after the date of the further arguments and now confirmed it was a s 6(2) situation which was a fact not disputed by Hotel Ramada. The assumptions of fact made at the hearing of further arguments were now shown to be wrong.

Following from the above, it was argued, the judgment confirmed by the learned judicial commissioner was null and void and must be set aside. Reliance was placed on [para ] 16 of GP Selvam J`s judgment dated 31 May 1999 in Sun Cruises Ltd v Overseas Union Bank Ltd [1999] 3 SLR 404 which reads:

The Gaming Act 1845 made all gaming debts void. It is well entrenched law that a security given to discharge or answer a void debt is itself void: See Swan v Bank of Scotland [1836] 10 Bligh (NS) 627; 6 ER 231, Coutts & Co v Browne-Lecky [1947] KB 104. I would venture to add that, by the same logic, a judgment given on a void debt must also be void for no court of law has the power to validate something made void by an Act of Parliament.

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