Sunny Daisy Ltd v WBG Network (Singapore) Pte Ltd

JurisdictionSingapore
JudgeJudith Prakash J
Judgment Date15 July 2008
Neutral Citation[2008] SGHC 112
Docket NumberSuit No 470 of 2005 (Summonses Nos 4966 and 5135 of 2007)
Date15 July 2008
Year2008
Published date24 July 2008
Plaintiff CounselL Kuppanchetti and Christopher Buay (Alban Tay Mahtani & De Silva LLP)
Citation[2008] SGHC 112
Defendant CounselKelvin Tan (Gabriel Law Corporation)
CourtHigh Court (Singapore)
Subject MatterJurisdiction,Administrative error in writ,Amendments,Whether leave to amend writ should be granted,Civil Procedure,Whether court of co-ordinate jurisdiction may set aside judgment pursuant to challenge to status of that judgment

15 July 2008

Judith Prakash J:

Introduction

1 These grounds concern two related applications. The plaintiff, Sunny Daisy Limited (“Sunny”), brought Summons No. 4966 of 2007 to amend its Writ of Summons by correcting what its described as an error with regards to the place of incorporation of Sunny stated on the cover page of the Writ of Summons. The defendant, WBG Network (Singapore) Pte Ltd (“WBG”) brought Summons No. 5135 of 2007 to set aside the judgment that the plaintiff had obtained before me on 17 March 2006. That decision was subsequently affirmed on appeal before the Court of Appeal in Civil Appeal No. 43 of 2006 on 23 November 2006.

2 I allowed Sunny’s application and dismissed WBG’s. WBG has appealed against my order relating to the amendment. It has not appealed the order I made on the setting aside application but these grounds set out my reasons for both decisions.

Background

3 As the background to the applications was rather involved, it would be helpful to set out some of the key events which preceded them. Sunny is a corporation which carries on business as a wholesaler of health supplements while WBG runs a business of retailing health related products through a multi-level marketing scheme. From May 2003 to 6 September 2004, Sunny supplied and invoiced WBG for goods sold and delivered. WBG made various payments for the goods provided by Sunny. With the passage of time, however, WBG accumulated an outstanding debt of US$1,057,164.03(“the initial sum”) and Sunny therefore commenced legal proceedings in Singapore in July 2005 to recover the initial sum.

4 Sunny made an application for summary judgment. WBG was granted conditional leave to defend. Sunny then appealed. I heard the appeal on 17 March 2006. Before me, although WBG did not dispute receiving the goods, it put forward a three-pronged defence to Sunny’s action: first, that Sunny was no more than an agent for a third party, Internation Chlorella Co Ltd(“Internation”), and as such, was not the relevant party to claim the moneys due since the appropriate plaintiff should have been Internation; second, that the quantum claimed by Sunny was excessive; and third, that the goods supplied by Sunny were not of merchantable quality and/or not reasonably fit for the purpose for which they were intended. WBG lodged a counterclaim claiming damages on the basis of the third allegation.

5 My decision can be stated briefly. In relation to the substantive merits of the case, given that Sunny had applied for summary judgment for a smaller amount that was not disputed rather than the initial sum allegedly owed, the defence that the sum claimed was excessive was no longer tenable and failed. In relation to the identity of the creditor, I was of the view that it was difficult for WBG to suggest it was not indebted to Sunny given its inability to precisely identify the seller of the goods as well as its changing positions on this point during the course of the matter. I found that Sunny was the supplier and the proper plaintiff. I granted Sunny summary judgment in respect of the claimed sum with interest but stayed the execution of the said judgment pending the outcome of the counterclaim.

6 WBG, being dissatisfied with my decision, appealed to the Court of Appeal. On 23 November 2006, the Court of Appeal dismissed its appeal.

7 Proceedings in relation to the counterclaim continued. Eventually it was fixed for hearing on 28 January 2008.

8 In the meantime, there was an odd twist. On 9 October 2007, counsel for WBG (“GLC”) wrote to counsel for Sunny (“ATM”) requesting Sunny’s registration documents as they had not been able “to find a registered company bearing the name” of Sunny “as part of their normal search procedure”. Around two weeks later, having not heard from ATM, GLC repeated their request for Sunny’s registration documents. On 24 October 2007, ATM forwarded a copy of Sunny’s Certificate of Incorporation No. 492640. The Certificate stated inter alia, the following:

The Registrar of Companies of the British Virgin Islands HEREBY CERTIFIES pursuant to the International Business Companies Act Cap. 291 that all the requirements of the Act in respect of incorporation having been satisfied, SUNNY DAISY LIMITED is incorporated in the British Virgin Islands as an International Business Company this 22nd day of April, 2002.

[emphasis in bold added]

On 31 October 2007, GLC wrote to ATM, citing an apparent discrepancy in the Writ of Summons, which had stated the place of incorporation as Taiwan.

9 I should point out here that in the body of the writ the name of the plaintiff was written as “Sunny Daisy Limited (Foreign Reg No 492640)”. On the third page, a Taiwanese address was given as Sunny’s principal place of business. It was nowhere stated expressly that Sunny was incorporated in Taiwan. However, in the front cover of the writ that appeared in the electronic filing system, Sunny was described as “Sunny Daisy Limited (Taiwan) Company ID No. 492640”.

10 In November 2007, Sunny filed Summons No. 4966 of 2007, seeking leave to amend their Writ of Summons by amending the identification number of Sunny from “Foreign Reg No. 492640” to “Br Virgin Islands RC No. 492640”. The basis of the application was that the error in description was merely an administrative error.

11 In Summons No. 5133 of 2007, WBG applied to set aside the judgment granted in favour of Sunny on 17 March 2006 on the basis that the change in Sunny’s description was new information that had arisen which warranted the setting aside of the judgment and the granting of leave to defend so that this issue could be tried at a full trial. WBG further objected to Sunny’s application to amend its writ.

12 I heard both parties’ submissions and decided that this court had no jurisdiction to set aside the judgment previously granted in Sunny’s favour. I then dismissed WBG’s application and permitted Sunny to amend its description to show its place of incorporation in all the documents filed in the proceedings.

The issues

13 The issues that arose in the applications were:

(a) whether a court of co-ordinate jurisdiction may set aside a judgment pursuant to a challenge to the status of that judgment; and

(b) whether leave to amend should be granted.

Sunny’s case

14 In relation to the setting aside application, Sunny’s case rested on the principle that one court of the High Court cannot set aside the judgment of a court of co-ordinate jurisdiction. In support of this, counsel for Sunny drew my attention to a myriad of precedents such as Poh Soon Kiat v Hotel Ramada of Nevada t/a Tropicana Resort & Casino [1999] 4 SLR 391(“Poh Soon Kiat”), Neo Corp Pte Ltd (in liquidation) v Neocorp Innovations Pte Ltd [2006] 2 SLR 717 (“Neocorp”) and English authorities such as re Barrell Enterprises [1973] 1 WLR 19(“Barrell Enterprises”).

15 In relation to the amendment application, counsel for Sunny referred to the affidavits filed in support of the same. The first affidavit was filed by one of its solicitors, Buay Kee Seng, Christopher. He exhibited a copy of Sunny’s Certificate of Incorporation No. 492640 dated 22 April 2002 which was issued by the Registrar of Companies of the British Virgin Islands (“BVI”). He noted that in the writ of summons filed on 4 July 2005, Sunny’s identification number had been stated as “Foreign Reg No.: 492640”. In the EFS electronic template, however, the identification number had been stated as “(Taiwan) Company ID No.: 492640” or “(Taiwan) RC No. 492640” due to an administrative error. This was incorrect and it was therefore necessary to amend the identification number in the writ so that it clearly disclosed the place of incorporation of Sunny. The amendment, if allowed, would not effect any substantive change of party to the action but simply correct an administrative error.

16 A further affidavit was filed by Mr Wang Shun Te, a director of Sunny. He averred that, in all the relevant documents passing between Sunny and WBG in relation to the supply of goods between May 2003 and September 2004, the supplier had been clearly identified as “Sunny Daisy Limited”. Neither Sunny nor Mr Wang had made any statement to WBG relating to Sunny’s place of incorporation or its registration number. Nor was such information sought by WBG. Referring to WBG’s allegation that Sunny had always referred to itself as being a Taiwanese registered company, Mr Wang pointed out that it had actually described itself simply as “Sunny Daisy Limited (Foreign Reg No. 492640)” in all its pleadings. It had never represented itself as a Taiwanese registered company in its invoices or in any affidavit filed in the present proceedings. What Sunny did was to provide a contact address in Taiwan for purposes of placing orders. No statement was ever made as to its registered address or place of incorporation.

17 Mr Wang denied that Sunny was attempting to replace a Taiwanese Sunny Daisy by a BVI entity of the same name. There was only one Sunny in the transactions between the parties: Sunny Daisy Limited (Foreign Reg No. 492640) was the same party as Sunny Daisy Limited (British Virgin Islands RC No. 492640). In response to WBG’s contention that Sunny had no legal personality in Taiwan, Mr Wang averred that the issue of foreign law was a red herring.

WBG’s case

18 With regard to its application to set aside the judgment, WBG averred that although it opposed Sunny’s application to amend the particulars of its place of incorporation, WBG wanted to admit this new piece of evidence in the trial. Secondly, it contended that WBG should have brought a separate action or sought an order for a new trial; and thirdly, it said that the status of Sunny had an effect on the legality of the contract concluded between both parties. WBG’s point was that as a foreign company that was not registered in Taiwan, it was illegal for Sunny to carry on business there and that made the contract between Sunny and WBG illegal....

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1 books & journal articles
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