Tunas (Pte) Ltd v Mayer Investments Pte Ltd and Others

• Judge: Punch Coomaraswamy J
• Judgment Date: 21 February 1989
• Neutral Citation: [1989] SGHC 15
• Citation: [1989] SGHC 15
• Defendant Counsel: Jocelyn Ong (State Counsel),Loh Boon Huat (Godwin & Co)
• Published date: 19 September 2003
• Plaintiff Counsel: Tan May Tee (Lee Woo & Partners)
• Date: 21 February 1989
• Docket Number: Suit No 700 of 1985
• Court: High Court (Singapore)
• Subject Matter: Land,Injunction sought against registration of conflicting interest,Laches,Undertaking by another to indemnify applicant showing the adequacy of damages,Effect on injunction,Adequacy of damages if injunction not granted,Injunction sought not to be wider than necessary to protect applicant's interest,O 20 r 1 Rules of the Supreme Court 1970,Duty of applicant to make full and frank disclosure,Civil Procedure,ss 5(1), 37(1), 41(3), (4), 67(2) & 104(1) Land Titles Act (Cap 157),Delay in registering interest in land,Interest in parking lots reserved to seller of land

Cur Adv Vult

There is a duty upon an applicant for an ex parte injunction to make full and fair disclosure of all facts, not only those in his favour but also those in favour of the adversary that could have a bearing on his application. There is a long line of authority asserting this proposition as well as the proposition that failure to do so can preclude a court dealing with the application on its merits or lack of them.

In Castelli v Cook (1849) 7 Hare 89 at p 94, Sir James Wigram, Vice Chancellor, said:

The rule, as I understand it, is this: that a plaintiff applying ex parte comes (as it has been expressed) under a contract that he will state the whole case fully and fairly to the court. If he fails to do that, and the court finds, when the other party applies to dissolve the injunction, that any material fact has been suppressed or not properly brought forward, the plaintiff is told that the court will not decide on the merits, and that, as he has broken faith with the court, the injunction must go. (Emphasis added.)

The applicant`s failure to ascertain all material facts, and the real (or pretended) ignorance of the importance of any such fact is no excuse for failure to bring them to the judge`s notice on the ex parte application.

Lord Langdale made this clear in Dalglish v Jarvie (1850) 42 ER 89 at p 241. He said that it was:

... the duty of a party who comes for an injunction, the effect of which is to deprive another of his legal right, to ascertain for himself what are the facts which are material to be brought forward, and it (is) no excuse for him to say that he was not aware of their importance.

These words were approved by the English Court of Appeal in the case of R v Kensington Income Tax Commissioners [1917] 1 KB 486 by Cozens-Hardy MR at p 504 and Scrutton LJ at p 514. Cozens-Hardy MR also cited with approval the passage, abovementioned, from Castelli v Cook .

Even before R v Kensington Income Tax Commissioners [1917] 1 KB 486 in analysing the English authorities prior to 1912, Isaacs J (as he then was) of the Australian High Court said in Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at p 682:

Uberrima fides is required, and the party inducing the court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall.

`The principle (of full and fair disclosure) is not limited to cases where there is a deliberate intention to mislead but extends to cases where material facts have not been disclosed even innocently,` said Browne-Wilkinson J (as he then was) in Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289 at p 295.

A practice direction of the Queen`s Bench Divisional Court on procedure in ex parte applications to a judge in chambers was made on 30 March 1983. It was an inevitable consequence of cases, some of which are referred to above. English practice directions do not establish anything necessarily binding or mandatory for Singapore. However, practice directions can deal purely with administrative matters and `logistics` (eg lodge documents by 3pm) or with matters almost of substantive law or of practice or procedure. When practitioners in England carry out what is required by the latter type of practice direction, the practice and procedure adopted by them leads to judgments which can be persuasive, highly persuasive or even regarded as binding upon a Singapore (or other common law country) court. This naturally varies with the branch of law. The binding nature can depend on whether the topic comes within the appropriate sections of the Civil Law Act or other legislation `importing` English law into Singapore.

The practice direction referred to, inter alia, covers the mandatory content of an applicant`s affidavits in an ex parte application for an interim injunction. The direction appears in [1983] 1 All ER 1119 at p 1120 and [1983] 1 WLR 433 at p 434. Part B para 3(1) starts off by calling attention to O 29 r 1 of the Rules of the Supreme Court which is identical to the similarly numbered rule in Singapore. Paragraph 3(2) reads:

The affidavit in support should contain a clear and concise statement:

(a) of the facts giving rise to the claim against the defendant in the proceedings;

(b) of the facts giving rise to the claim for the interlocutory relief;

(c) of the facts relied on as justifying application ex parte, including details of any notice given to the defendant or, if none has been given, the reasons for giving none;

(d) of any answer asserted by the defendant (or which he is thought likely to assert) either to the claim in the action or to the claim for interlocutory relief;

(e) of any facts known to the applicant which might lead the court not to grant relief ex parte;

(f) of the precise relief sought.

As should now be clear, this practice direction merely embodies principles from a long line of decided cases. It was obviously made necessary by the rapid growth in England of ex parte applications for interlocutory injunctions in the recent past.

There has been a similar growth in Singapore. A practitioner in Singapore applying ex parte for an injunction (or a prerogative writ as in the Kensington Income Tax case [1917] 1 KB 486) cannot, at best, possibly go wrong if he treated the quoted part and the rest of part B of this practice direction as virtually binding on him. He would, on the lowest scale, be foolish and doing his client a gross and serious disservice if he ignored it.

The principles I have referred to have also long been applied in Singapore and Malaysia in ex parte applications for attachment before judgment under the respective Debtors Acts. Chelvasingam Maclntyre J in the Ipoh case of Hari Singh v Sundarammal [1965] 2 MLJ 174 in setting aside such an attachment said:

It is settled law that on an ex parte application, the person making the application should show the utmost good faith by not holding back any vital information touching upon matters pertinent to the application.

In this connection, also relevant is the judgment of Sinnathuray J in Leong Teng Hin v Tsuneyosu Tobuse [1979] 2 MLJ 61 .

I identify the plaintiffs, the four defendants and others involved in the transactions that led to these proceedings as follows -

Tunas : Tunas (Pte) Ltd, the plaintiffs.

Mayer : Mayer Investment Pte Ltd, the first defendants.

Suwarna : Grace Suwarna, the second defendant.

Jessie : Jessie Investment (Pte) Ltd, the third defendants.

Registrar : Registrar of Land (sic) Titles whose proper and statutory designation is `Registrar of Titles` under s 5(1) of the Land Titles Act (Cap 276, 1970 Ed; now Cap 157, 1985 Ed), the fourth defendant.

Crestpoint : Crestpoint Estates Ltd, a Hongkong company.

Carrian : Carrian Realty (Singapore) Pte Ltd, a wholly owned subsidiary of Crestpoint.

Wardley : Wardley Ltd.

The properties involved are identified as follows:

Tunas Building : A building located at 114 Anson Road, Singapore 0207, with a floor area of 5,652 sq metres or thereabouts and consisting of two basements, a ground floor, 27 floors and a rooftop terrace garden.

19th floor : 19th floor of Tunas Building.

25Th, 26th

& 27th floors : 25th, 26th and 27th floors of Tunas Building.

14 parking lots : 14 specified parking lots on the second floor of Tunas Building.

The property : Tunas Building, exclusive of the 19th, 25th, 26th and 27th floors.

References to the Act are references to the Land Titles Act (Cap 157).

The transactions that led to the application before me are complicated and involved. For present purposes I will only set out those that have a bearing on the issues before me.

On 22 January 1981 Tunas sold Tunas Building to Mayer exclusive of the 19th, 25th, 26th and 27th floors, ie the property. By the contract of sale, Mayer covenanted with Tunas by cl 25 to grant to Tunas `the right, privilege or licence to use` all parking lots on the second floor `to the intent that such right or licence shall run as a benefit to the owners of the 19th, 25th, 26th and 27th floors`. A subsidiary strata certificate of title to...