Terrestrial Pte Ltd v Allgo Marine Pte Ltd and another
| Jurisdiction | Singapore |
| Judge | Lai Siu Chiu J |
| Judgment Date | 06 March 2013 |
| Neutral Citation | [2013] SGHC 57 |
| Court | High Court (Singapore) |
| Hearing Date | 21 August 2012,13 June 2012 |
| Docket Number | Suit No 827 of 2011 (Registrar’s Appeals Nos 209 and 311 of 2012) |
| Plaintiff Counsel | Lim Yee Ming and Amy Tan (Kelvin Chia Partnership) |
| Defendant Counsel | Govindarajalu Asokan (RHTLaw Taylor Wessing LLP) |
| Subject Matter | Civil Procedure |
| Published date | 13 March 2013 |
The two Registrar’s Appeals in this case primarily related to the controversy surrounding the service of the writ of summons filed on 18 November 2011 (“the Writ”) by Terrestrial Pte Ltd (“the plaintiff”) against Allgo Marine Pte Ltd (“the first defendant”) and Koh Lin Yee (“the second defendant”). Both Registrar’s Appeals were filed by the defendants.
The plaintiff had sued the first and second defendants for breach of two sale and purchase agreements (made in 2009 and 2010 respectively) between the plaintiff and the first defendant for the sale to the plaintiff of two flat-top barges to be built by the first defendant. The plaintiff alleged that the first defendant failed to deliver the barges. The plaintiff also sued both defendants for advances that it had made for the construction of the barges, totalling $350,000, under a loan agreement dated 3 January 2011 (“the loan agreement”). There was a separate claim against the second defendant for a personal loan of $56,000. The second defendant is both a director and shareholder of the first defendant.
Registrar’s Appeal No 209 of 2012 (“the first appeal”) was against the decision of an assistant registrar in refusing to grant a stay of execution on the judgment in default of appearance which the plaintiff had obtained against the defendants on 4 January 2012 (“the Default Judgment”), while Registrar’s Appeal No 311 of 2012 (“the second appeal”) was against the decision of another assistant registrar in refusing to set aside the service of the Writ on the defendants.
I allowed the first as well as the second appeals. In relation to the second appeal, I
The defendants are unhappy with my order in [4(b)] above and have filed a notice of appeal (in Civil Appeal No 131 of 2012) against that and other directions which I made, as well as against my decision that the service of the Writ on the two defendants was an irregularity and did not amount to a nullity.
The chronology of eventsThe Writ was served by registered post and by certificate of posting on the first defendant on 25 November 2011. On 8 December 2011, the plaintiff applied for and obtained an order for substituted service of the Writ on the second defendant. The relevant extracts from the order of court state:
Service of the Writ of Summons dated 18 November 2011 in this action be effected on the 2
nd Defendant:- by mailing a copy each of the Writ of Summons and a copy of the Order of Court made herein to the 2
nd Defendant’s address at Blk 27, Still Road South #05-09 and #03-09, D’Ecosia, Singapore 423936 by way of both registered post and certificate of posting; and- by posting a copy of the Writ of Summons and a copy of the Order of Court made hereon on the Notice Board of the Honourable Court House, Singapore.
I should point out that prior to obtaining the above order of court for substituted service, the court clerk of the plaintiff’s solicitors, one Md Azahar Bin Ismail (“Ismail”), had spoken to the second defendant on the telephone on 24 November 2011. As the second defendant then said that he was busy, he requested Ismail to contact him again the following week. Ismail duly contacted the second defendant on his handphone on 28 November 2011, but received no answer. Later that same day, the second defendant returned Ismail’s call and requested the latter to contact him again on the following day (29 November 2011). Nothing was said by Ismail as to whether he contacted the second defendant on 29 November 2011 and, if so, what transpired. Neither did Ismail reveal the contents of his conversations with the second defendant in his first affidavit filed on 6 December 2011 in support of the plaintiff’s application for substituted service.
In his first affidavit, Ismail deposed that he had been unable to effect personal service of the Writ on the second defendant at either No 27 Still Road South, #05-09, D’Ecosia, Singapore 423936 or No 27 Still Road South, #03-09, D’Ecosia, Singapore 423936 (collectively, “the Still Road addresses”). The Still Road addresses were those of the second defendant as stated in the loan agreement referred to at [2] above. Ismail deposed that he had not been able to go to either of the units at the Still Road addresses because access cards were required to gain entry to the lifts leading to the relevant floors. When Ismail attempted to contact the occupants of both units by intercom, he received no response.
On 14 December 2011, the Writ was served on the second defendant by posting on the notice board of the Supreme Court and by mailing copies to the second defendant at the Still Road addresses.
On 4 January 2012, the plaintiff obtained the Default Judgment against the two defendants for the sums of $350,000, $12,891.68 and $10,000, together with contractual interest and costs on an indemnity basis. On the same day, Ismail filed his second affidavit to confirm that substituted service had been effected on the second defendant at the Still Road addresses by way of registered post and certificate of posting, as well as by way of posting on the notice board of the Supreme Court.
On 6 January 2012, the plaintiff received an email from the second defendant proposing a settlement which the plaintiff rejected. On 1 February 2012, the defendants’ (former) solicitors wrote for the first time to the plaintiff’s solicitors.
On 26 January 2012, by way of execution on the Default Judgment, the plaintiff obtained Writs of Seizure and Sale Nos 10 and 12 of 2012 (“the Writs of Seizure and Sale”) against the second defendant’s properties situated at, respectively, No 33 Oxley Rise, #04-02, Visioncrest, Singapore 238710 (“the first property”) and No 10 Gopeng Street, #17-19, The Icon, Singapore 078878 (“the second property”). The Sheriff seized the first and second properties on 20 March 2012 and 12 April 2012 respectively, and fixed them for auction on or about 19 April 2012 and 12 May 2012 respectively.
On 24 April 2012, the second defendant applied in Summons No 2043 of 2012 (“the First Stay Application”) for a stay of execution on the Writs of Seizure and Sale. An assistant registrar granted a temporary stay on 9 May 2012, conditional upon the defendants delivering to the plaintiff a cashier’s order for $200,000 by 16 May 2012. The defendants were unable to comply with the condition and could only provide a cashier’s order in the sum of $50,000. In the result, on 18 May 2012, the stay of execution was lifted and the First Stay Application was dismissed with costs fixed at $600.
On 29 May 2012, the defendants filed the first appeal against the dismissal of the First Stay Application.
On 8 June 2012, the defendants applied in Summons No 2859 of 2012 (“the Setting-Aside Application”) to,
On 13 June 2012, this court heard the first appeal and allowed a temporary stay of execution on the Writs of Seizure and Sale until 10 August 2012 on condition that the defendants furnished security to the plaintiff in the total sum of $200,000 by two timelines, which condition was complied with by the defendants. The plaintiff was awarded the costs of the first appeal fixed at $750.
The Setting-Aside Application was dismissed by an assistant registrar on 13 July 2012 with costs fixed at $7,000 to the plaintiff, excluding disbursements. On 25 July 2012, the defendants filed the second appeal against the dismissal of the Setting-Aside Application.
By Summons No 3683 of 2012 (“the Second Stay Application”) filed on 20 July 2012, the defendants applied for a further stay of execution on the Writs of Seizure and Sale beyond 10 August 2012 pending the disposal of the second appeal against the dismissal of the Setting-Aside Application. This court also granted the Second Stay Application.
Both sides filed affidavits in support of their respective positions, to which affidavits I now turn, starting with those filed by the defendants.
The defendants’ submissions The second defendant filed several affidavits in support of both the Stay Applications as well as the Setting-Aside Application. He dealt with the merits of the plaintiff’s claim
In his (third) affidavit filed on 13 June 2012, the second defendant claimed that in Ismail’s telephone conversations with him in November 2011, the latter did not mention a writ. However he did not go on to elaborate on the contents of their conversations.
In his seventh affidavit filed on 25 July 2012, the second defendant referred to Ismail’s second affidavit (see [10] above) and exhibited (in Exhibit “KLY-7”) copies of the certificates of posting issued by Singapore Post. At p 89 thereof, the second defendant exhibited the two envelopes addressed to him at the Still Road addresses showing that they had been returned to the plaintiff’s solicitors with the remark “Unclaimed”. In fact, service on the first defendant...
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Civil Procedure
...Nor was the High Court's order for costs in favour of the respondent disturbed. 8.13 Also see Terrestrial Pte Ltd v Allgo Marine Pte Ltd[2013] SGHC 57 in which the High Court refused to award costs to the defendants, who succeeded in the first and second appeals, because of their conduct in......