Societe Generale v Tai Kee Sing @ Tai Hean Sing

• Judge: Tay Yong Kwang J
• Judgment Date: 26 November 2003
• Neutral Citation: [2003] SGHC 296
• Citation: [2003] SGHC 296
• Court: High Court (Singapore)
• Published date: 06 May 2004
• Plaintiff Counsel: Eddie Ng and Angel Lum (Tan Kok Quan Partnership)
• Defendant Counsel: Sheela Lopez (Sheela Lopez and Company)
• Subject Matter: Civil Procedure,Summary judgment,Rules of Court O 14,Whether the plaintiff was entitled to summary judgment for monies disbursed to the defendant under credit facilities,Whether there was an issue to be tried or some other reason for a trial.

1 This was an appeal by the defendant against the decision of Assistant Registrar Teo Hsiao-Huey ordering that summary judgment be entered against the defendant under Order 14 of the Rules of Court for:

(a) US$4,845,066.92 being the sum due and owing by the defendant to the plaintiff as at 23 April 2002;

(b) Interest at the rate of 3.25% above the plaintiff’s cost of funds from 24 April 2002 until payment; and

(c) Costs on the indemnity basis (including disbursements) fixed at $11,600.

2 I dismissed the defendant’s appeal with costs of the appeal on the indemnity basis fixed at $10,000, inclusive of disbursements.

The Plaintiff’s Case

3 The plaintiff’s claim was for monies disbursed to the defendant under credit facilities to finance the defendant’s share trading activities. There was no dispute that the defendant did enjoy the use of such monies.

4 The credit facilities were granted to the defendant by way of the plaintiff’s letters of 23 June 1995 and 24 January 1997. Under the first letter, credit facilities of up to US$5 million were made available to the defendant. Under the second letter, the limit was increased to US$7 million. The interest rate applicable to the credit facilities was varied by the plaintiff’s letter of 13 April 1998.

5 The plaintiff claimed that its Standard Conditions Governing Share Financing/Trading Facility (‘SCSFT’), its ‘Societe Generale Standard Terms’ (‘the first standard terms’) and its ‘SG Standard Terms’ (‘the second standard terms’) were respectively annexed to the credit facility letters of 23 June 1995, 24 January 1997 and 13 April 1998 and that all these documents constituted the agreement in question between the plaintiff and the defendant.

6 Pursuant to the agreement, the defendant opened account number 43885 and entered into a number of other agreements with the plaintiff. The defendant executed a memorandum of charge, a letter of set-off and a charge over deposit(s) all dated 30 June 1995. He also executed a memorandum of deposit dated 2 July 1996, a mandate for personal accounts (by an individual), an indemnity for telephone/facsimile/telex and a ‘hold mail agreement’ by which the defendant instructed the plaintiff not to despatch correspondence of the bank to him by mail but to place it in a folder for safe keeping.

7 The defendant agreed that he had accepted the first standard terms but denied having accepted the SCSFT or the second standard terms. However, the plaintiff’s documentation checklist made it clear that the SCSFT was part of the loan documentation accompanying the credit facility letter of 23 June 1995. The salient terms in the first and the second standard terms were nearly identical in any event. The defendant also claimed that he executed the memorandum of deposit in contemplation of a further and different credit facility which did not materialise. This was contrary to the language used in the said memorandum.

8 Despite the plaintiff’s contention that these disputed documents were part of the agreement between the parties, the plaintiff was prepared not to rely on them at the appeal just as it did not rely on them before the Assistant Registrar.

9 The defendant defaulted in repaying the amounts due and owing under the credit facilities. The plaintiff issued to him a certificate dated 23 April 2002 showing that the amount of his indebtedness as at that date was US$4,845,066.92. This was a certificate issued pursuant to a conclusive evidence clause between the parties and no allegation of fraud or obvious error in respect of it had been raised by the defendant. As the plaintiff’s claim was based on this certificate, the defendant could therefore have no defence in respect of liability or the amount of the debt.

The Defendant’s Case

10 The relevant terms of the contract relied on by the defendant were:

‘COLLATERAL VALUE AND LOAN-TO-SECURITY RATIO

a) The collateral value of the cash deposit(s) of such currencies acceptable to the Bank shall be determined at 90% of the face value of the deposit(s) where the loan is in the same currency as the collateral providing a loan-to-security ratio of 1:1.11, and at 80% where the loan and collateral are in different currencies providing a loan-to-security ratio of 1:1.25;

b) The collateral value of shares (readily marketable shares of public listed companies which are component stocks of indices, or other stocks expressly approved by the Bank, registered with the Bank’s custodian under lien to us) shall be determined at 50% of the current market value of the shares providing a loan-to-security ratio of 1:2.0.

We will determine the collateral value of the various securities at our discretion based on prices, information and rates of exchange provided by our dealers.

MINIMUM COLLATERAL VALUE

The minimum aggregate collateral value to be maintained at all times must be at least 100 percent of the outstanding loan amount(s).

CONDITIONS

a) Should the minimum aggregate collateral value and/or the loan-to-security ratio be breached, the borrower is required within 7 business days to:

i) restore the original minimum aggregate collateral value and/or the loan-to-security ratio by furnishing additional collateral acceptable to the Bank; or

ii) repay the loan and any outstanding fees and penalties and any other expenses owed to or incurred by the Bank.

b) Should the minimum aggregate collateral value and/or the loan-to-security ratio deteriorate by more than 10% the Bank may at its sole discretion immediately dispose of any and all collateral held by the Bank without further notice.’

11 The defendant raised three defences and a counterclaim against the plaintiff. The defendant alleged that the plaintiff failed (save for the two instances below) to notify him of any breach in the minimum aggregate collateral value and/or the loan to security ratio and thereby failed to allow him a reasonable opportunity of restoring the original minimum aggregate collateral value or the loan to security ratio by furnishing additional security within the stipulated period. He also had the option to repay the loan and all outstanding amounts. There were only two occasions in late 1997 and in early 1998 when the plaintiff’s general manager informed him verbally that he was required to top up his security without specifying the precise deficiency. The fact that the plaintiff had the discretion to determine the collateral value of the securities implied that the defendant must be notified of changes in the value of the collateral and of any breach so that the stipulated period for compliance could start to run.

12 The plaintiff also failed to dispose of the securities expeditiously or to request a top up of the securities by at least March 1997. The margin was breached in February 1997. The defendant denied that there were ongoing negotiations between the parties which resulted in the securities not being sold at the material time. By the time he was informed of the breach in December 1997, there was almost nothing he could have done to remedy the loan-to-collateral value percentage which stood then at 296%.

13 In any event, even when the defendant was asked to top up the security, he was not given the actual percentage of the breach and was unaware of the full extent of the problem. On 23 December 1997, his solicitors offered the plaintiff additional security by way of the assignment of ten bungalows in Kuala Lumpur valued at RM12,550,800. There were meetings after that but they were not to negotiate on the...