United Overseas Bank Ltd v Thye Nam Loong (S) Pte Ltd and Others

• Jurisdiction: Singapore
• Judge: K S Rajah JC
• Judgment Date: 14 October 1994
• Neutral Citation: [1994] SGHC 262
• Published date: 13 December 2012
• Year: 1994
• Citation: [1994] SGHC 262
• Plaintiff Counsel: Arjan B Chotrani and Haresh Kamdar (Arjan & Co),Rebecca Chew (Rajah & Tann)
• Court: High Court (Singapore)

Judgment:

Coram: K S Rajah JC

J U D G M E N T

Appeal against Assistant Registrar's Decision

The first defendant company is the judgment debtor. The second defendant and third defendant who are married to each other are the directors of the first defendants. Separate proceedings were instituted against the second defendant and third defendant. The second defendant was given unconditional leave to defend. Final judgment was entered against the third defendant who managed the company and whose present whereabouts are not known.

The second defendant has appealed against the Assistant Registrar's decision given on 11 July 1994 ordering that:-

1. the second defendant do make a list of the documents of the first defendants in her possession or in her solicitors' possession and affirm an affidavit that those are the only documents in her or her solicitors' possession and file and serve the said list and affidavit on the plaintiffs' solicitors within 10 days from the date hereof;

2. the solicitors for the plaintiffs to request for relevant documents within seven days thereafter;

3. any objection to produce any of the documents is to be referred to the Assistant Registrar Miss Teh Hwee Hwee for her decision and the solicitors for the plaintiffs are to write in for a date for the purpose, if necessary; and

4. costs of $150 to be payable to the second defendant by the first defendants, the judgment debtor.

I heard the appeal on 1 September 1994 and allowed the appeal.

I heard further arguments at the request of the plaintiffs' solicitors. I have further varied my orders and now give reasons for setting aside the orders of the Assistant Registrar.

Background

The plaintiffs agreed to grant the first defendants banking facilities. The letter of offer dated 3 January 1990 ("facility letter") contains the terms and conditions.

In accordance with the facility letter, the plaintiffs extended credit facilities to the first defendants for establishing irrevocable letter of credit and issuing trust receipts.

As at 25 January 1994, a sum of US$1,722,668.70 was due and owing to the plaintiffs from the first defendants. The demand for payment has not been satisfied.

The second defendant and third defendant entered into an agreement ("guarantee") with the plaintiffs and guaranteed the plaintiffs that the second defendant and third defendant would pay the plaintiffs on demand sums unpaid by the first defendants. The guarantee is a continuing guarantee up to the limit of S$20 million.

By separate letters to the second defendant and third defendant, the plaintiffs demanded payment of the US$1,722,668.70. The second defendant and third defendant have not paid the sum demanded.

Judgment against First Defendants

On 14 April 1994, the plaintiffs obtained judgment in default against the first defendants for US$1,722,668.70, interest on US$708,609.59 and US$992,567.07 at the rate of 2% per annum above the plaintiffs' prime rate, and costs on an indemnity basis.

Oral Examination of Second Defendant and Third Defendant

On 30 May 1994, the ex parte application made by the plaintiffs was for the following orders:-

(i) the second defendant and third defendant to be orally examined as to whether and if so, what debts are owing to the first defendants and whether the company has and if so, what other property of satisfying the judgment of 14 April 1994;

(ii) the second defendant and third defendant to produce books or documents in their possession or power relevant to the question before the Registrar at the time of examination.

The application was clearly made to ascertain persons known to owe money to the first defendants and property owned by the first defendants so that the debt can, inter alia, be attached by way of garnishee proceedings under O 49. If the judgment debtor disobeys the order, he is liable to be committed to prison. On 31 May 1993, the Assistant Registrar gave an order in terms of the plaintiffs' ex parte application.

Hearing on 11 July 1994

At the examination of the judgment debtor, the second defendant represented the first defendants. The court was told that the second defendant (the wife) knew nothing about the company's affairs and that there was a defence of undue influence. She deposed in her affidavit of 30 June 1994 that she signed documents at the request of her husband (the third defendant), under pressure, because she trusted him as a well- known businessman and to avoid quarrels. The guarantee for S$20 million was signed as a Singapore director of the first defendants when it was presented to her without her attention being drawn to it.

The plaintiffs were unable to effect service on the third defendant who was out of Singapore. Before the oral examination took place on 11 July 1994, the plaintiffs applied for final judgment against the second defendant and the third defendant. On 8 June 1994, the plaintiffs applied for judgment against the second defendant and the third defendant for:-

1. the sum of US$1,722,668.70 or its equivalent in Singapore dollars at the date of the issuance of the writ of summons;

2. interest on the sum of US$708,609.59 and the sum of US$992,567.07 at the rate of 2% per annum above the plaintiffs' prime rate (prevailing from time to time) from 25 January 1994 to full payment, or its equivalent in Singapore dollars at the date of the issuance of the writ of summons;

3. costs on an indemnity basis; and

4. such further and other relief as the court shall deem fit to grant.

The second defendant filed her first affidavit on 30 June 1994 exhibiting documents. The third defendant did not file any affidavit. At the hearing on 18 July 1994, Senior Assistant Registrar Mrs Koh Juat Jong made an order in terms of the plaintiffs' application and gave judgment against the third defendant. The third defendant was represented by Mr Lim Yong but on 18 July 1994, Mr Lim Yong informed the plaintiffs' solicitors that he had no instructions from the third defendant. Mr Arjan for the second defendant mentioned on Mr Lim Yong's behalf.

Mr Arjan complained that the plaintiffs' affidavit of 15 July 1994 was served late and that he was unable to take instructions from the second defendant. He asked for an adjournment. The application was allowed and leave was given to the second defendant to file another affidavit by 22 July 1994. The hearing was adjourned to 15 August 1994 and costs to the plaintiffs for the adjournment was fixed at $300.

The application for judgment against the second defendant and the third defendant was heard on 5 September 1994. Unconditional leave to defend the action was given to the second defendant.

Examination of Judgment Debtor

Various objections were taken at the examination of the second defendant appearing on behalf of the first defendants. Very briefly, they are:-

(i) The affidavit filed...