Transpac Capital Pte Ltd v Lam Soon (Thailand) Co Ltd

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JC
• Judgment Date: 20 September 1999
• Neutral Citation: [1999] SGHC 246
• Date: 20 September 1999
• Subject Matter: Judgments and orders,Applicability of doctrine to interlocutory proceedings,Civil Procedure,Whether amendments immaterial and useless,Qualification of judicial commissioner's findings as "tentative or provisional",Leave to amend statement of claim,Pleadings,Doctrine of res judicata and issue estoppel,O 11 Rules of Court
• Docket Number: Suit No 1878 of 1997 (Registrar's Appeal No 240 of 1999)
• Published date: 19 September 2003
• Defendant Counsel: Josephine Chong (David Lim & Partners)
• Court: High Court (Singapore)
• Plaintiff Counsel: Valerie Tan (Harry Elias Partnership)

The appeal

The matter before me concerns an appeal by the plaintiffs against the order of an assistant registrar of the Supreme Court dismissing the plaintiffs` application for leave to amend their statement of claim. I allowed the appeal and granted the plaintiffs the leave sought.

Chronology of material events

Listed below are the events following the filing of the writ of summons with the statement of claim endorsed on 27 October 1997.

31 October 1997	Second and third defendants entered an appearance in this action
17 November 1997	Plaintiffs applied ex parte for leave to serve the writ on the first defendants in Thailand.
9 December 1997	Leave to serve out of jurisdiction granted
22 December 1997	Further and better particulars provided by the plaintiffs to the second and third defendants upon their request.
5 January 1998	Second and third defendants filed their defence.
16 January 1998	Second and third defendants filed their amended defence.
20 April 1998	First defendants entered an appearance after having been served in Thailand.
21 April 1998	First defendants applied to set aside order of court dated 9 December 1997 granting leave to serve out of the jurisdiction
12 June 1998	First defendants` application dismissed with costs.
16 June 1998	First defendants filed their defence
18 June 1998	First defendants appealed against order dismissing their application
22 June 1998	Plaintiffs filed reply to first defendants` defence and to second and third defendants` amended defence.
12 August 1998	Amarjeet Singh JC allowed the first defendants` appeal and set aside the order dated 9 December 1997 granting leave under O 11.
3 September 1998	Plaintiffs appealed against Amarjeet Singh JC`s decision.
21 January 1999	The Court of Appeal (Karthigesu JA and Lai Kew Chai J) dismissed the plaintiffs` appeal.
10 March 1999	Plaintiffs` solicitors wrote to the Registrar requesting the grounds of decision of the Court of Appeal as the plaintiffs intended to amend their statement of caim and to apply to re-serve the first defendants in Thailand but the first defendants had written to the plaintiffs to state that they would apply to set aside any fresh leave to re-serve on the ground of res judicata.
12 March 1999	The Registry replied:`Please be informed that the judges have directed as follows: "When the Court of Appeal dismisses an appeal and decided not to give a written judgment it means that the judgment of the court below is confirmed. In this appeal the Court of Appeal will not be giving a written judgment."`
29 April 1999	Plaintiffs applied for leave to amend their statement of claim.
19 May 1999	Plaintiffs` application was dismissed by the assistant registrar.
2 June 1999	Plaintiffs appealed against the assistant registrar`s decision.

Thus it was that this appeal came before me.

The statement of claim

The plaintiffs are an investment company incorporated in Singapore while the first defendants are a company incorporated in Thailand. The second and third defendants are the directors of the first defendants.

By a loan agreement dated 4 December 1992, the plaintiffs agreed to provide a convertible loan of S$14m to the first defendants for 36 months commencing on 9 December 1992, the drawdown date. The said amount was disbursed partly in US dollars (some US $7m) and partly in Singapore dollars (some S$2.3m).

By a guarantee of the same date, the second and third defendants jointly and severally guaranteed the payment of all amounts due and payable under the loan agreement and also agreed to pay the plaintiffs a commitment fee, payable in Singapore dollars, calculated at an amount equal to 5% per annum of the principal amount of the loan, compounded from year to year. The obligations of the guarantors to pay the commitment fee continued for as long as the first defendants were not listed on the Stock Exchange of Thailand pursuant to an investment agreement dated 4 September 1992.

On or about 23 August 1995, the plaintiffs and the first defendants agreed to vary the terms of the loan agreement by a divestment agreement under which the plaintiffs agreed to an early repayment of the loan. In addition, it was agreed that part of the S$14m loan was to be converted to 11 million shares at 12.5baht per share amounting to 137.5m baht. These shares were then sold to the second and third defendants in two tranches of 5.5 million shares each at 17baht per share for the first tranche and 18baht per share for the second tranche. The first defendants agreed to repay the balance of the loan of 79.3 million baht then outstanding by instalments ending on 30 December 1995, dividends of 7.098m baht to the plaintiffs and interest on the loans to be calculated from the time of disbursement in December 1992. It was also averred that the divestment agreement did not supersede the original loan agreement.

Part of the unconverted loan was paid by the first defendants to the plaintiffs between 2 January 1996 to 10 May 1996. The first defendants failed to pay the remaining portion of the unconverted loan together with accrued interest thereon amounting to some S$520,000 and dividends amounting to the equivalent of S$404,099.06.

The plaintiffs claimed that the second and third defendants were liable for these amounts by virtue of the guarantee given by them.

The proposed amended statement of claim

The proposed amendments were necessitated essentially by the judgment of Amarjeet Singh JC, which will be referred to later in this judgment. The plaintiffs now pleaded cl 22 of the loan agreement pursuant to which the plaintiffs and first defendants agreed that the said agreement be governed by the laws of Singapore and to submit to the jurisdiction of the Singapore courts. Similarly, the plaintiffs averred that they and the second and third defendants agreed that the guarantee was to be governed by Singapore laws and to submit to the jurisdiction of the Singapore courts.

The plaintiffs also set out the fact of discussions between them and the defendants in both Singapore and Thailand leading to the variation of the loan agreement. The divestment agreement was now said to be contained in three faxes dated 8 June 1995, 15 June 1995 and 23 August 1995, all from the plaintiffs to the first defendants and, in essence, the terms of that agreement as spelt out previously were repeated here save that the balance of the unconverted loan to be repaid by 30 December 1995 was now indicated as S$1,049,995 and US $2,488,270.85.

Again, it was averred that the divestment agreement did not supersede the loan agreement but only varied the manner in which the loan was to be repaid. It was further pleaded that the divestment agreement therefore continued to be governed by the laws of Singapore or that such were the proper law of the contract.

The plaintiffs then set out in a new Sch 1 the precise payments made by the defendants under the divestment agreement and averred that these payments were appropriated by them for the payment of the shares with the object that the purchase consideration for the shares be extinguished first....