Suresh Kumar s/o A Jesupal v AXA Insurance Pte Ltd and another (Lim Tean, third party)

• Judge: Wong Peck
• Judgment Date: 10 June 2021
• Neutral Citation: [2021] SGMC 37
• Citation: [2021] SGMC 37
• Court: Magistrates' Court (Singapore)
• Published date: 19 June 2021
• Docket Number: Magistrate’s Court Suit No 1595 of 2020
• Plaintiff Counsel: Joseph Chen (Joseph Chen & Co)
• Defendant Counsel: Patrick Yeo (Legal Solutions LLC),Lim Tean (Carson Law Chambers)
• Subject Matter: INSURANCE,accident insurance
• Hearing Date: 15 September 2020,08 June 2021,15 March 2021,03 November 2020,16 March 2021,16 September 2020

District Judge Wong Peck: Introduction

The parties in the present suit were involved in another suit, namely District Court Suit number 387 of 2015 (“DC 387”). The plaintiff in both suits were the same. In DC 387 that was filed on 3 Feb 2015, the plaintiff who was injured in a motor accident that occurred on 22 July 2012 along Bayfront Avenue, sued one Guo Nenqing to recover his personal injuries, loss and damage arising from the accident. AXA Insurance Pte Ltd was the insurer of Guo Nenqing in DC 387. The third party in the present suit was the plaintiff’s former lawyer in DC 387. In my decision, I shall refer to AXA Insurance Pte Ltd as the first defendant and Guo Nenqing as the second defendant.

On 21 March 2017, the plaintiff obtained interlocutory judgment in DC 387 against the second defendant where the second defendant was to pay the plaintiff 100% of the damages to be assessed and costs to be agreed or taxed. On 8 October 2019, the plaintiff obtained final judgment against the second defendant where the second defendant was to pay the plaintiff the sum of $50,000 which was inclusive of interest and the interim payment of $5,000. This amount comprised of $40,000 as general damages and $10,000 as special damages. The cheque for $30,000 out of the final judgment sum of $50,000 was made out by the first defendant in favour of Carson Law Chambers of which the third party is the sole proprietor. This cheque was banked into the office account of Carson Law Chambers.

It was undisputed that the plaintiff did not receive the $30,000 sum. As a result, he commenced the present suit against the first defendant to seek payment of the $30,000 sum. The first defendant in turn sought an indemnity against the third party in the event that the first defendant was found liable to the plaintiff.

After hearing the evidence and considering the parties’ submissions, I decided to grant the plaintiff’s declarations as sought for in his Statement of Claim. In addition, I also granted judgment against the first defendant in favour of the plaintiff for the sum of $30,000 with interest at the statutory rate of 5.33% per annum thereon from 8 October 2019 to date of judgment and costs on indemnity basis payable by the first defendant to the plaintiff’s solicitors. I also ordered that the first defendant indemnified the plaintiff for his costs and disbursements incurred in this suit.

I also found the third party liable to indemnify the first defendant for the sum of $30,000 with statutory interest of 5.33% per annum thereon from 8 October 2019 to date of judgment and ordered a partial indemnity for legal costs and disbursements incurred in these proceedings. I set out the grounds for my decision below.

Facts The parties

In DC 387, it was adjudged On 21 March 2017 that interlocutory judgment be entered such that the second defendant was to pay the plaintiff 100% of the damages to be assessed and costs to be agreed or taxed on 21 March 2017. Final judgment was entered on 8 October 2019 by consent against the second defendant for the sum of $50,000 (inclusive of interest and interim payment of $5,000) with costs and disbursements to be agreed or taxed on 8 October 2019. The plaintiff had four different law firms acting for him throughout the litigation proceedings in DC 387. The plaintiff’s first set of lawyers was Regency Legal LLP which filed DC 387 on his behalf. On 18 November 2016¹, Regency Legal LLP wrote to Ari Goh & Partners which acted for the first defendant requesting for an interim payment sum of $5,000. The request was for a cheque of $5,000 to be made in favour of Regency Legal LLP. The interim payment was paid to Regency Legal LLP on 24 January 2017 upon such request of the law firm².

On 21 April 2018, C. Yogarajah LLC filed a Notice of Change of Solicitors to take over the legal representation of the plaintiff in DC 387. On 8 October 2018, C. Yogarajah LLC filed a Notice of Ceasing to Act as Solicitor. This meant that C. Yogarajah LLC was acting for the plaintiff between 21 April 2018 and 7 October 2018. The plaintiff was unrepresented from 8 October 2018 to 22 October 2018.

On 23 October 2018, Carson Law Chambers filed a Notice of Appointment of Solicitors to act for the plaintiff in DC 387. On 13 November 2019, the plaintiff discharged Carson Law Chambers and appointed Joseph Chen & Co (which remained as the plaintiff’s lawyer to-date) by way of Notice of Change of Solicitors filed and served on Carson Law Chambers and Willy Tay Chambers (which took over from Ari, Goh & Partners) at 1.59pm on 13 November 2019.³ So Carson Law Chambers represented the plaintiff from 23 October 2018 to 13 November 2019. Joseph Chen & Co represented the plaintiff from 13 November 2019 to 26 November 2019 as on 27 November 2019, Carson Law Chambers filed a Notice of Appointment of Solicitors. This meant that Carson Law Chambers represented the plaintiff from 27 November 2019 to 6 December 2019 as Joseph Chen &Co filed the necessary papers of representation on 6 December 2019. The critical time period was the day of 13 November 2019.

By way of a letter dated 13 November 2019⁴ from Willy Tay’s Chambers enclosing a cheque from the first defendant for $30,000⁵, this letter was addressed to Carson Law Chambers. A “Corrine Soh” of Carson Law Chambers acknowledged receipt of the letter and cheque on 14 November 2019 at 3.19pm. According to a letter dated 22 November 2019 written by Willy Tay’s Chambers sent to Joseph Chen & Co, the cheque was encashed by Carson Law Chambers⁶. As the attempts made by the plaintiff and Joseph Chen & Co to pursue the sum of $30,000 were futile, the writ of summons was filed by Joseph Chen & Co on 4 February 2020.

A total of three witnesses gave evidence in court. They were the plaintiff, the first defendant’s representative Tan Chai Geok and the first defendant’s lawyer in DC 387, Mr Willy Tay (“Mr Tay”). The third party chose not to take the witness stand.

The Parties’ Cases The plaintiff’s version

According to the plaintiff, other than the disputed sum of $30,000, the first defendant had paid the rest of the amounts ordered in the final judgment.⁷ The plaintiff took the position that the first defendant had wrongly given the cheque of $30,000 to Carson Law Chambers as the latter had been discharged from acting for the plaintiff. He was entitled to be paid $30,000 as the payment of this sum to Carson Law Chambers did not discharge the first defendant’s strict statutory liability under section 9(1)(b)(ii) of the Motor Vehicles (Third Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed⁸) ( “the Act”). According to the plaintiff, this amount was to be paid directly to the plaintiff⁹.

The plaintiff also claimed that the third party was not even his lawyer during the period 26 November 2019 to 6 December 2019 as the third party had filed Notice of Appointment of Solicitors on 26 November 2019 to take back conduct of DC 387 without the plaintiff’s authority and consent. According to the plaintiff, Joseph Chen & Co even filed Notice of Change of Solicitors on 6 December 2019 to negate the third party’s unauthorised acts.

By making the cheque in favour of Carson Law Chambers, the first defendant had breached Order 29, Rule 13 and Order 22, Rule 10 of the Rules of Court (Cap 322, 2014 Rev Ed) in failing to pay the $30,000 directly to him. The first defendant did not obtain authority from the plaintiff to make payment to the plaintiff’s lawyer instead of paying directly to the plaintiff.

The first defendant’s version

The first defendant was represented by Mr Tay in the conduct of DC 387. According to Mr Tay, after the consent final judgment was entered on 8 October 2019, there was no action taken to extract the final judgment or to finalise costs and disbursements. The first defendant was therefore anxious about the issue of post-judgment interest arising from the lack of urgency in resolving the matter. ¹⁰So Mr Tay advised the first defendant to render a further payment of $30,000 to pre-empt concerns about post judgment interest. After taking into consideration the interim payment of $5,000 already paid, the payment of additional $30,000 would mean a buffer of $15,000 to account for any potential solicitor-client costs payable by the plaintiff to his lawyers¹¹.

According to Mr Tay, he sent the letter enclosing the cheque of $30,000 to Carson Law Chambers as he was unaware that Joseph Chen & Co had filed a Notice of Change of Solicitors to replace Carson Law Chambers as the plaintiff’s lawyer. On 17 November 2019, Mr Tay received a letter from Joseph Chen & Co informing him that Joseph Chen & Co had taken over the conduct of the matter from the third party and not to send any cheques for interim payment to the third party. In reply, Mr Tay sent a letter dated 19 November 2019 informing Joseph Chen & Co that an interim payment of $30,000 was sent earlier to Carson Law Chambers. Mr Tay was informed by the first defendant that this cheque was presented and cleared for payment on 15 November 2019 by Carson Law Chambers.

Up until 26 November 2019, the plaintiff had not raised any issue in relation to the third party accepting the second interim payment on his behalf especially since the third party continued to act for the plaintiff on 27 November 2019.¹² On 27 November 2019, Joseph Chen sent a letter asserting that the third party had no authority to receive the $30,000 payment.

The first defendant’s position was that it had already discharged its duties and responsibilities when its cheque for $30,000 was presented and cleared and was therefore not liable to pay $30,000 the plaintiff. If at all, the plaintiff had wrongly sued the first defendant and should instead pursue his claim directly against the third party. In its third party statement of claim, the first defendant pleaded that the third party had wrongfully detained or converted the sum of...