Tay Ivy v Tay Joyce

• Jurisdiction: Singapore
• Judge: Michael Hwang JC
• Judgment Date: 02 November 1991
• Neutral Citation: [1991] SGHC 160
• Date: 02 November 1991
• Subject Matter: Proof of terms and conditions,Conditions of loan not pleaded,Duty of appellate court,Oral agreement,Whether plaintiff entitled to judgment,Appellate court to consider whether trial judge's findings 'plainly wrong',Parol evidence rule,Principles applied,s 6 Limitation Act (Cap 163),Whether cause of action accrued from date of advance or from date of demand for repayment,Burden of strict proof,Rules of construction,Loan agreement,Civil Procedure,Interference by appellate court,Whether loan simpliciter or a loan repayable on occurrence of two disjunctive conditions,Findings of fact,Contract,When time begins to run,Contractual terms,Pleadings,Nature of oral loan agreement,Appeals,Limitation of Actions,Whether action time-barred
• Docket Number: District Court Appeal No 26 of 1990
• Published date: 19 September 2003
• Defendant Counsel: Morris John and Bonnie Lo (Drew & Napier)
• Court: High Court (Singapore)
• Plaintiff Counsel: Cheng Tim Pin (Yap & Yap)

Cur Adv Vult

This is a case to which the words of Fry LJ in Reeves v Butcher [1891] 2 QB 509 (at p 511) may be applied: `We have not to determine whether the defence here set up is handsome or conscientious, but whether it is good at law - and I am of opinion that it is.`

The plaintiff`s case as pleaded was as follows:

(2) On or about 14 April 1972, the plaintiff, at the oral request of the said Tay Tuan Ann, lent to him the sum of $10,000. It was intended to be a friendly loan to be repaid when the plaintiff required payment.

Particulars

Date Amount

14 April 1972 By cheque $10,000

(3) The said Tay Tuan Ann has not repaid the said sum or any part thereof.

...

(6) On 28 March 1988, the plaintiff wrote a letter to Joyce Tay, the executrix of the estate of Tay Tuan Ann, deceased, and demanded for repayment of the said loan.

(7) Despite repeated requests, the defendant as executrix of the will of Tay Tuan Ann, deceased, has not repaid the said sum or any part thereof, and the said sum is still due and owing by the defendant to the plaintiff.

However, the evidence of the plaintiff at trial was as follows:

... on 14 April 1972, I gave a loan to Tay Tuan Ann for $10,000. ... There were two conditions to the loan. When my youngest daughter finish `A` level she would go to `U` and I would require the payment of my loan. The second condition when both the deceased and his wife has the money, they would have to pay me. (Record of appeal [`RA`] at p 31.)

The plaintiff`s counsel`s opening statement (RA at p 29) and the other evidence (RA at p 35) clarified that these two conditions were disjunctive, ie the loan was repayable when either of the two conditions was fulfilled.

The material parts of the defence as pleaded were as follows:

(2) Paragraph 2 of the statement of claim is denied and the plaintiff is put to strict proof.

(3) The defendant avers that as Tay Tuan Ann ... did not owe the plaintiff the said sum of $10,000 as alleged or at all, there was no moneys due to the plaintiff as alleged in para 3 of the statement of claim.

...

(6) The defendant did receive a letter sent by the plaintiff and dated 28 March 1988 wherein the plaintiff demanded payment of the alleged loan. The defendant avers that there never was any loan as alleged or at all and ignored the said letter in so far as the same related to the said loan.

(7) As regards para 7 of the statement of claim the defendant repeats paras 2 and 3 of the defence hereof.

There was also a plea of limitation with which I will deal later.

The defence as pleaded was essentially a bare denial of the alleged loan and a challenge to the plaintiff to furnish strict proof both of the loan and its terms. However, at the trial the defendant sought to introduce evidence of an affirmative defence, viz that there was a payment of $10,000 from the plaintiff to Tay Tuan Ann but it was a payment of part of Tay Tuan Ann`s share of the estate of Tay Kim Tie or a gift for services rendered to the estate (RA at p 34). The learned magistrate observed (RA at p 34) that this defence was not pleaded and gave no consideration to it in his grounds of decision. This was clearly a correct course of action, both because this defence had not been pleaded as well as because the evidence of the defendant in support of this affirmative defence was totally unconvincing. In any event, counsel for the respondent acknowledged that this affirmative defence was abandoned and that he was contesting the claim on the weakness of the plaintiff`s own case.

In the circumstances, it is clear that the learned magistrate decided the case on the basis of the plaintiff`s pleadings and evidence as tested by cross-examination and the other documentary evidence available. The learned magistrate did not accept the plaintiff`s evidence in full. He also did not find the plaintiff`s other witness (Mdm Ivy Tay) a credible witness. He found that while there was a loan advanced by the plaintiff to Tay Tuan Ann, it was not on the two conditions alleged but was a loan simpliciter with no time specified for repayment (RA at p 26). If it was a loan simpliciter, such a loan was repayable as from the date of advance, ie 14 April 1972. Accordingly, under s 6 of the Limitation Act (Cap 163), the action would be time-barred after 14 April 1978, and, as this ground had been pleaded in the defence, he dismissed the plaintiff`s action with costs.

The plaintiff and subsequently, the appellant as executrix of the plaintiff`s estate (by an order of court dated 11 October 1990) appealed against this decision. The grounds of appeal are as follows:

(a) The decision of the learned judge is not supported by evidence and/or is against the weight of the evidence as a whole.

(b) The learned judge errs in law in disregarding the evidence of the plaintiff.

(c) The learned judge errs in law in disregarding that the defendant`s evidence is against the document or her discredibility.

(d) The learned judge errs in law in making speculation about the financial status of the deceased at the date of the loan.

(e) The learned judge errs in law and on fact that the recovery or repayment of the loan is statute-barred.

In argument, counsel for the appellant effectively dealt with grounds (a), (b), (c) and (d) together. His essential argument was that the learned magistrate could not have half believed the plaintiff`s evidence, totally disbelieved the defendant`s evidence and yet given judgment to the defendant. Since the magistrate had accepted the evidence of the plaintiff that there was a loan, there was no reason for him to reject the rest of the plaintiff`s evidence as to the conditions upon which the loan was advanced. Counsel contended that the finding of the learned magistrate was `out of tune with the evidence`, relying on the Privy Council judgment of Lord Hailsham in Julius Libman v General Medical Council [1972] AC 217 at p 221F (and subsequent cases citing this passage).

In the grounds of decision of the learned magistrate, he did not make any specific remarks about the demeanour of the plaintiff or the plaintiff`s other witness. In elaborating on why he did not accept the plaintiff`s version, he made the following observations:

(a) It was highly improbable that the plaintiff would have lent $10,000 on the terms stated, particularly on the condition that the loan would be repayable when Iris Tay (the plaintiff`s youngest daughter) attained her `A` levels and entered university, Iris Tay having been about four or five years old in 1972. He thought it `quite extraordinary` for the plaintiff to make a loan in 1972 to be repayable in 1984, particularly when the parties were sharing a very close relationship (this not being disputed between the parties) (RA at p 23).

(b) Tay Tuan Ann was financially very well-off at the time of his death, owning memberships of several golf clubs. He also thought it `quite improbable` that...