Tan Keaw Chong v Chua Tiong Guan and Another

• Jurisdiction: Singapore
• Judge: Leo Zhen Wei Lionel AR
• Judgment Date: 26 May 2009
• Neutral Citation: [2009] SGHC 127
• Court: High Court (Singapore)
• Year: 2009
• Citation: [2009] SGHC 127
• Plaintiff Counsel: Kelvin Tan (Gabriel Law Corporation)
• Defendant Counsel: Tan Teng Muan (Mallal & Namazie)
• Subject Matter: Civil Procedure
• Published date: 26 May 2009

26 May 2009

AR Leo Zhen Wei Lionel:

Introduction

1 This is an application by Ms Chua Hui Khim (“the Second Defendant”) for a setting aside of the order of court, dated 2 March 2009 (“the Order”), joining her as the representative of the estate of Mr Chua Tiong Guan (“the First Defendant”). After hearing the submissions of the respective parties, I dismissed the Second Defendant’s application. I now give the reasons for my decision.

Background

2 In February 2008, Mr Tan Keaw Chong (“the Plaintiff”) commenced Suit No 80 of 2008 (“the Suit”) against the First Defendant for breach of an oral agreement, made around January or February 1997, that allegedly provided that they would have an equal share in the beneficial interest of a piece of property located at 6 Toh Tuck Road, #03-02 Rainbow Garden, Singapore 596680 (“the Property”). The Plaintiff also claimed to have made various payments, amounting to a sum of $225,800, towards the Property pursuant to this oral agreement. For these reasons, the Plaintiff claimed for the sum of $225,800, as well as for an account of his share in the profits generated from the sale of the Property, which had been sold en-bloc with the whole development in which it was situated.

3 On 8 January 2009, the First Defendant passed away. The Plaintiff then made an application, on 17 February 2009, for an order that the First Defendant’s son, Mr Chua Wee Thye, be appointed to represent the estate of the First Defendant (“the application”) pursuant to O 15 r 7 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed). At the hearing of 2 March 2009, the Plaintiff’s solicitors orally applied to amend their summons to substitute the Second Defendant in place of Mr Chua Wee Thye. The Assistant Registrar (“the AR”) allowed the amendment and granted the Plaintiff’s amended application, ordering that the Second Defendant be made a party to the Suit as representative of the First Defendant’s estate. On 11 April 2009, the Second Defendant filed the present summons, seeking a setting aside of the Order.

Preliminary matter

4 Before delving into the substance of whether the Order should be set aside, it is necessary that I deal with one preliminary matter. At the hearing before me, the Plaintiff submitted that the issues raised in this application were res judicata and that the proper procedure for these issues to be revisited would be for the Second Defendant to appeal against the AR’s decision. This argument was made on the basis that the Second Defendant had been represented at the hearing of 2 March 2009 (“the hearing”) by Mr Bala Chandran (“Mr Bala”) from Mallal & Namazie. Mr Bala denied having represented the Second Defendant at the hearing, asserting that he had appeared in his capacity as solicitor for the First Defendant, who had passed away. The Second Defendant similarly denied having instructed Mr Bala to act on her behalf.

5 The question of whether the Second Defendant was represented at the hearing is important because the setting aside of an order made on a summons-in-chambers is limited to specific circumstances, for example, as provided in O 32 r 6, where the application was made ex parte. The rationale underlying the specific provision, in O 32 r 6, for the setting aside of an ex parte order is that it is necessary, in the interest of justice, to allow the party who has not been heard to object to the order if he so wishes, especially since the court, in making the order, often relies entirely on the applicant’s affidavit: see Jeffrey Pinsler, Singapore Court Practice 2006 (LexisNexis, 2006) (“Singapore Court Practice 2006”) at para 32/6/2. This rationale would be inapplicable if the Second Defendant had been represented at the hearing, since the AR would then have heard both parties on the issues, and would have made her decision based on the merits of what had been presented. In such a situation, should the Second Defendant be unwilling to accept the appointment as representative or be disagreeable to the findings of the AR, she should have appealed the AR’s decision, rather than to apply to have the Order set aside. An examination of O 15 r 7(5) reinforces this conclusion, as it only makes mention of an application to discharge or vary an order that is made ex parte:

Change of parties by reason of death, etc. (O 15 r 7)

(5) Any application to the Court by a person served with an order made ex parte under this Rule for the discharge or variation of the order must be made within 14 days after the service of the order on that person.

In contrast, if the Second Defendant had not been represented at the hearing, then the proper procedure would be an application to set aside the Order before the registrar who made the ex parte order or before some other registrar: see Singapore Court Practice 2006 at para 36/6/2; Minister of Foreign Affairs Trade and Industry v Vehicles and Supplies [1991] 4 All ER 65.

6 I accepted the Second Defendant’s submission that Mr Bala had appeared at the hearing in his capacity as solicitor for the estate of the First Defendant, not as solicitor for the Second Defendant. The Plaintiff had served its application on Mallal & Namzie and Mr Chua Wee Thye. It appeared clear to me that Mr Chua Wee Thye was served as the Plaintiff sought to appoint him as representative, while Mallal & Namazie was served because Mr Bala had been the solicitor for the First Defendant. Since Mr Bala had been served in his capacity as solicitor for the First Defendant, it would be logical that he would attend the hearing in that capacity. Indeed, in her minute sheet, the AR had recorded Mr Bala as appearing “for D (who has passed away)”. Further, the Plaintiff’s application was initially for the appointment of Mr Chua Wee Thye as representative. Therefore, it was unlikely that the Second Defendant would have anticipated that she might be appointed representative instead, and have taken steps to instruct a solicitor. Although Mr Bala had resisted the Plaintiff’s appointment of the Second Defendant as representative, he had not done so on the behalf of the Second Defendant. In all likelihood, Mr Bala was merely advancing the position that he considered to be most in line with his instructions from the First Defendant. In these circumstances, I was of the view that Mr Bala’s appearance at the hearing was not a bar to a setting aside of the Order.

My decision

7 The Second Defendant was appointed representative of the estate of the First Defendant pursuant to O 15 r 7(2), which reads:

Change of parties by reason of death, etc. (O 15 r 7)

(2) Where at any stage of the proceedings in any cause or matter the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, if it thinks it necessary in order to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, order that other person be made a party to the cause of action or matter and the proceedings to be carried on as if he had been substituted for the first-mentioned party. An application for an order under this paragraph may be made ex parte.

The Second Defendant argued that her appointment had not been “necessary” for the effective and complete determination of all matters in dispute because the Plaintiff had been informed, at the time of the application, of her intention to apply for the relevant grant. The Second Defendant had not applied immediately for letters of administration as it was unclear whether the First Defendant had left a will. In order to ascertain whether there was a will, the Second Defendant had instructed her solicitors to make the relevant searches with the Wills Registry and the Law Society. After being informed by the Law Society that the notice on “Information of Wills” would be published in the March 2009 issue of the Law Gazette, the Second Defendant decided to wait until a reasonable time had lapsed after the advertisement had been published before applying for letters of administration. However, even before the advertisement was published in the Law Gazette, the Plaintiff took out the application to appoint her as representative.

8 In addition, the Second Defendant contended that the person appointed under O 15 r 7(2) should be the personal representative of the deceased’s estate, and that she had accordingly be wrongly appointed. It is to this argument that I shall first turn.

Must the person appointed under O 15 r 7(2) be the...