Tan Yeow Khoon and Another v Tan Yeow Tat and Others

JurisdictionSingapore
JudgeChoo Han Teck J
Judgment Date24 February 2003
Neutral Citation[2003] SGHC 36
Date24 February 2003
Subject MatterRes Judicata,Exercise of residual discretion to re-open issue in equity,Whether plaintiffs estopped from raising issue in present case because issue was subject matter of previous litigation,Issue estoppel
Docket NumberOriginating Summons No 1733 of
Published date07 October 2003
Defendant CounselMolly Lim, SC and Philip Ling (Wong Tan & Molly Lim)
CourtHigh Court (Singapore)
Plaintiff CounselLeslie Chew, SC and Chan Kia Pheng (Khattar Wong & Partners)

1. This originating summons was taken out by the plaintiffs for an order of court to compel a review and revision of a valuation by Miss Lydia Sng of Knight Frank Pte Ltd on the property known as 31 Penjuru Lane. Neither Miss Sng nor Knight Frank are parties to these proceedings. The first and second defendants here are the plaintiffs' siblings and were themselves the plaintiffs in Originating Summons No. 406 of 2002 where the present plaintiffs were the defendants. The third defendant is a partner of Ernst & Young who was appointed as the expert for the purpose of the valuation of shares in the three family companies namely, Soon Hock Transportation Pte Ltd, Soon Hock Container & Warehousing Pte Ltd, and Cogent Container Services Pte Ltd. He was also the third defendant in Originating Summons No. 406 of 2002. The history of the animosity and litigation between the siblings are set out in my judgment of Originating Summons No. 406 of 2002 and need not be repeated at length here. I shall however have to trace the salient events briefly as well as to refer to other litigation that were not referred to me during the hearing of Originating Summons No. 406 of 2002. These other litigation are directly relevant to this originating summons but not Originating Summons No. 406 of 2002. I note Mr. Leslie Chew, SC's objection to the relevancy of those other litigation and I shall address those objections shortly. In this judgment references to the plaintiffs and defendants are to the plaintiffs and defendants in this originating summons unless otherwise stated.

2. The siblings found themselves divided into two factions fighting over the three companies. Eventually, a disputed letter dated 28 November 1995 from the defendants' then solicitors Bih Li & Lee became the subject matter of a court action that concluded with an order of court declaring that letter to be a binding contract between the parties. Pursuant to the terms of that letter, Ong Yew Huat, the third defendant here was appointed to value the assets of the three companies so that the purchase price of the defendants' 25% shareholding of the three companies could be ascertained. One of the assets that was to be valued was the property at 31 Penjuru Lane. The terms of reference to Ong Yew Huat were straightforward. He was to take the average of two valuations, one by Richard Ellis Pte Ltd (who were appointed by the plaintiffs) and the other by Knight Frank Pte Ltd (appointed by the defendants) dated 24 July 1996. It was not disputed that the valuation should be as at 31 October 1995. Richard Ellis valued the property at $10.77m and Knight Frank valued it at $16m.

3. The plaintiffs' first complaint is that Knight Frank's valuation was made on the assumption that the leasehold of the property which belonged to the Jurong Town Corporation ("JTC") had been extended by 13 years. Mr Chew submitted that at the time when Knight Frank produced their valuation the JTC had not yet extended the lease, and that it was only extended in 1999. He submitted that therefore the valuation was plainly wrong and in breach of the order of court as well as the terms of reference. He submitted on the authority of Baber v Kenwood [1978] 1 Ll. Rep 175, 179 and Dixons Group Plc v Jan-Andrew Murray Obyonski (1997) 86 BLR 23, 29-30 that the court is entitled to intervene and redress the wrong. Miss Molly Lim, SC, counsel for the defendants submitted that the lease was formally extended in 1999 but in-principle extension had been given before that. Counsel's main objection was that the issue of wrong valuation by Knight Frank had already been the subject of litigation and the matter is res judicata, and alternatively, the plaintiffs are stymied by issue estoppel. The plaintiffs' second complaint against the Knight Frank valuation is that it was prepared on the mistaken assumption that the property was about 75% completed when in fact it was only 45% completed. Mr. Chew argued that the two erroneous assumptions were very significant. A lease for X number of years is vastly different from one that is X plus 13 years. Mr. Chew also emphasized that Knight Frank's wrong assumption was made by reason of wrong information given to them by the defendants

4. It is necessary now to refer to the litigation that preceded the present originating summons. On 14 June 2000 the plaintiffs took out a summons-in-chambers No. 602637 under Originating Summons No. 739 of 1996 asking for a declaration that the same Knight Frank valuation "be declared wrong" and, secondly, that the defendants withdraw the Knight Frank report from Ong Yew Huat, and thirdly, that Knight Frank be directed to prepare a revised report. The summons came up for hearing before Justice Rubin who recorded a consent order on 24 July 2000 in the following terms:

"By consent it is ordered that the plaintiffs be given leave to withdraw the said application with no order as to costs." And that "it is further directed by consent that –

1. Solicitors for the plaintiffs and the defendants are to forward the affidavit of Tan Yeow Khoon filed on 7 June 2000 to Knight Frank and to convey to them the proposal approved by the Court that Knight Frank be invited to review the valuation report on 31 Penjuru Lane dated 24 July 1996 and if they deem fit to vary or adjust the valuation for the reasons set out in the affidavit of Tan Yeow Khoon filed on 7 June 2000.

2. Knight Frank's further costs be borne equally by the...

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