Tang Chay Seng v Tung Yang Wee Arthur

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 10 August 2010
• Neutral Citation: [2010] SGHC 229
• Plaintiff Counsel: Deepak Natverlal (Yong Koh & Partners)
• Docket Number: Suit No 953 of 2008 (Summons No 969 of 2010)
• Date: 10 August 2010
• Hearing Date: 08 April 2010,31 March 2010
• Subject Matter: Civil Procedure,Pleadings
• Year: 2010
• Citation: [2010] SGHC 229
• Defendant Counsel: Defendant, in person.
• Court: High Court (Singapore)
• Published date: 18 August 2010

Tan Lee Meng J:

This application was made shortly after the end of the trial involving a dispute between the plaintiff, Mr Tang Chay Seng (“TCS”), and his nephew, the defendant, Mr Tung Yang Wee, Arthur (“Arthur”). The dispute was over an alleged breach of the former’s registered trade marks by the latter and allegations of passing off. Arthur applied to amend his pleadings. I allowed the application and set out below the reasons for my decision.

TCS, who operated a pork noodle stall known as “Hill Street Tai Hwa Pork Noodles” at Apt Blk 465 Crawford Lane #01-12, Singapore 190465, was the registered proprietor of two trade marks in relation to his business. His trade marks included the words Hill Street Tai Hwa Pork Noodle, Chinese characters (namely “吊橋頭” and “大華猪肉粿條麵”) as well as graphic depictions of a suspension bridge and a bowl of noodles with chopsticks. Arthur’s pork noodle stall at VivoCity Food Court (the “VivoCity Stall”) used a signboard with the Chinese characters “老大華”, as well as Korean and Japanese characters not found in TCS’s trade marks. Furthermore, Arthur’s sign had no English words and no depiction of either a suspension bridge or a bowl of noodles with chopsticks. Arthur, who appeared in person, pleaded that he had not infringed TCS’s trade marks and that he was not liable for passing off.

During the trial, Arthur applied for leave to amend his Defence and Counterclaim in two ways. First, he sought to plead that TCS had consented to his use of the sign “老大華” for the VivoCity Stall. The reason for this amendment was obvious. Under s 27(1) of the Trade Marks Act (Cap 332, 2005 Rev Ed) (“the Act”), a trade mark is infringed only if a mark is used without the consent of its registered proprietor.

Secondly, as one of the issues in the passing off action concerned Arthur’s of TCS’s culinary awards in an advertisement in the Lianhe Zaobao on 5 November 2008, Arthur sought to amend his Defence to assert that TCS had consented to the use by him of the culinary awards.

As Arthur did not file an affidavit in support of his application to amend his Defence and Counterclaim, the hearing of the application to amend his pleadings was adjourned until he had filed the said affidavit. The amendment application was therefore heard on 8 April 2010, after the trial had been completed.

In his affidavit in support of his application Arthur stated at paras 3, 4 and 7 as follows: 3 I am a layman and have no training in the legal field. 4 I realise now that my Defence and Counterclaim had been too brief …. As a layman, I just realised that my explanation was inadequate in the foresaid document and I failed to show how evidence submitted to this Honourable Court is relevant…. 7 The amendment that I sought is also consistent with the content of my [affidavit of evidence-in-chief] dated 20th January 2010. Even though amendment is coming in at a late stage, Mr Deepak Natverlal had the opportunity to cross-examine me on these amendments during trial. Therefore, the plaintiff will not be prejudiced since Mr Deepak had been afforded a sufficient opportunity to address the substance of the amendment.

Whether the application should be allowed

O 20 r 5(1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) provides as follows:

Subject to Order 15 Rules 6, 6A, 7 and 8, and this Rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as my be just and in such...