Wee Cheng Swee Henry v Jo Baby Kartika Polim

• Jurisdiction: Singapore
• Judgment Date: 25 May 2015
• Date: 25 May 2015
• Docket Number: Suit No 1186 of 2013 (Registrar's Appeals Nos 134 and 136 of 2014)
• Court: High Court (Singapore)

Wee Cheng Swee Henry

Plaintiff

and

Jo Baby Kartika Polim

Defendant

[2015] SGHC 140

Vinodh Coomaraswamy J

Suit No 1186 of 2013 (Registrar's Appeals Nos 134 and 136 of 2014)

High Court

Civil Procedure—Summary judgment—Plaintiff advancing sums of money to defendant—Whether reasonable probability defendant had real or bona fide defence or whether some other reason for trial

Civil Procedure—Summary judgment—Shadowy defence—Defence success improbable—Whether leave to defend conditional—Whether security for plaintiff's claim—Quantum of security

The plaintiff made a total of seven claims against the defendant in this action which, for convenience, were referred to as claims 1 to 7. Claims 1 to 6 were monetary claims. Claim 7 sought to recover a car from the defendant which the plaintiff claimed was his property, alternatively to recover $120,000 from the defendant, being the sum which the plaintiff had advanced to the defendant to enable her to purchase the car.

The defendant's case was that all seven claims comprised, with one exception, gifts from the plaintiff to the defendant. The exception was that the defendant accepted that $105,000 out of the $205,000 comprising claim 3 was a loan, but asserted that she had already repaid the $105,000.

The plaintiff applied for summary judgment on all seven claims, relying on a number of the defendant's e-mails and text messages as admissions. The assistant registrar (‘the Assistant Registrar’) entered judgment against the defendant for $100,000, being the amount remaining unpaid on claim 3, and for $5,000, being the amount comprised in claim 4. He gave the defendant unconditional leave to defend the remaining five claims. Both parties appealed. The defendant sought to set aside the judgment for $105,000 and to be granted unconditional leave to defend claims 3 and 4. The plaintiff prayed that the defendant's unconditional leave to defend the five unadjudicated claims be set aside and that summary judgment be entered on all of the claims.

Held, dismissing the defendant's appeal and allowing the plaintiff's appeal:

(1) In an application for summary judgment, the plaintiff had to first show that he had a prima facie case. If the plaintiff crossed that threshold, the defendant then came under a tactical burden under O 14 r 3 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) to raise a triable issue. The defendant had to bring forward grounds which raised a reasonable probability that the defendant had a real or bona fide defence in relation to the issues in dispute which ought to be tried. Alternatively, the defendant could show that there ought to be a trial for some other reason: at [35] to [37] .

(2) The defendant was entitled to leave to defend claims 1, 2 and 7. The defendant had offered at least some explanation of the basis on which she asserted that the plaintiff intended these sums to be gifts to her. The defendant's explanation of the e-mail said to be an admission on these claims was not inherently incredible. The circumstances of this case made oral evidence and cross-examination necessary to understand fully the subtext and the context of the e-mail: at [68] to [70] .

(3) The Assistant Registrar was correct to enter judgment against the defendant for $100,000 on claim 3. The defendant had not offered any basis to explain why the plaintiff would have advanced her a total sum of $205,000 for a single purpose but only classified $105,000 of that advance as a loan and the remaining $100,000 as a gift: at [71] to [74] and [86] .

(4) The Assistant Registrar's decision on claim 4 was left undisturbed. The defendant admitted that that sum was a loan and had repaid it to the plaintiff after the hearing before the Assistant Registrar: at [75] to [77] .

(5) The defendant was entitled to leave to defend claims 5 and 6. The text message relied on by the plaintiff as an admission on claim 5 was equivocal. As for claim 6, the plaintiff had no evidence other than his own self-serving statement that this was a loan. Both claims ought to go to trial: at [78] and [79] .

(6) The conventional formulation was that conditional leave to defend was the appropriate order when the defendant had succeeded in showing a reasonable probability of a real or bona fide defence which ought to be tried, but that defence was found to be shadowy. The modern English approach was that the court may make a conditional order where it appeared to the court possible that a defence may succeed, but improbable that it would do so. The words of O 14 r 4 (1) of the Rules of Court and the discretion it conferred were wide enough to accommodate the modern English approach as a useful alternative to the conventional ‘shadowy defence’ formulation: at [81] and [82] .

(7) It was appropriate to impose a condition on the defendant's leave to defend claims 1, 2 and 7. The plaintiff had a strong case on these claims in light of the defendant's admission read with the substantial documentary evidence which the plaintiff had produced to show its subtext and context. While there was a possibility that the defendant would succeed at trial in showing a different subtext or context to her admission, it was improbable that she would do so: at [83] .

(8) It was also appropriate to impose a condition on the defendant's leave to defend claims 5 and 6 because the defendant's defences were shadowy. There were serious difficulties with the overall credibility of the defendant which led to doubt over the defendant's bare denial of claims 5 and 6 and, indeed, of claims 1, 2 and 7: at [84] .

(9) The court had a wide discretion as to the type of condition to impose when granting leave to defend. The condition imposed typically required the defendant to provide security in one form or other for all or part of the plaintiff's claim. The quantum of security to be required of a defendant had to be fixed with two factors in mind: (a) doing justice to the plaintiff in light of the strength of the plaintiff's case and the uncertainties attached to the defendant's defences; and (b) doing justice to the defendant in light of her financial means: at [108] and [112] .

(10) In considering the second of the two factors, the court should be guided by the following principles: (a) it was wrong in principle to impose a condition which the defendant would find impossible, as opposed to merely difficult, to comply with; (b) the defendant bore the burden of showing that it would be impossible to comply with the condition; (c) in discharging that burden, the defendant had a duty fully and frankly to disclose her financial position to the court; and (d) in considering whether it was impossible for the defendant to comply with the condition, it was legitimate to have regard to the financial resources of the defendant as well as of those persons who might reasonably be expected to extend financial assistance to her in her hour of need: at [118] .

(11) It was just that the defendant ought to secure the plaintiff's entire unadjudicated claim as a condition of obtaining leave to defend. Given the strength of the plaintiff's case, the weaknesses in the defendant's defences and the doubts about the defendant's credibility, she ought to show her commitment to her defences so that the plaintiff would not be prejudiced by the inevitable delay in proceeding to trial. The defendant had also failed to make the requisite full and frank disclosure of her financial position and had failed to satisfy her burden of proving that it was impossible, as opposed to merely difficult, for her to furnish security for the entirety of the plaintiff's unadjudicated claim. The defendant was, however, given the alternative of returning the car to the plaintiff and furnishing security to the plaintiff in an amount reduced by $120,000: at [121] , [126] and [140] .

Anglo-Eastern Trust Ltd v Roohallah Kermanshahchi [2002] EWCA Civ 198 (refd)

Cheng Lip Kwong v Bangkok Bank Ltd [1992] 1 SLR (R) 941; [1992] 2 SLR 290 (refd)

Citibank NA v Lim Soo Peng [2004] SGHC 266 (refd)

Ford, Re; ex parte The Trustee [1900] 2 QB 211 (refd)

Goh Chok Tong v Chee Soon Juan [2003] 3 SLR (R) 32; [2003] 3 SLR 32 (refd)

Hilti Far East Pte Ltd v Tan Hup Guan [1991] 1 SLR (R) 711; [1991] SLR 736 (refd)

International Bank of Singapore Ltd v Bader [1989] 1 MLJ 214 (refd)

Mohd Zain bin Abdullah v Chimbusco International Petroleum (Singapore) Pte Ltd [2014] 2 SLR 446 (refd)

MVYorke Motors v Edwards [1982] 1 WLR 444 (folld)

Ritzland Investment Pte Ltd v Grace Management & Consultancy Services Pte Ltd [2014] 2 SLR 1342 (refd)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 14 r 3, O 14 r 3 (1) , O 14 r 4 (1) , O 14 r 7

Civil Procedure Rules 1998 (SI 1998 No 3132) (UK) Pt 24

Rules of the Supreme Court 1965 (SI 1965 No 1776) (UK) O 14

Chelva Retnam Rajah SC and Teng Po Yew (Tan Rajah & Cheah) for the plaintiff

Salem Ibrahim and Iman Ibrahim (Salem Ibrahim LLC) for the defendant.

Vinodh Coomaraswamy J

Introduction

1 In this action, the plaintiff claims from the defendant: (a) various loans totalling $383,300 which he alleges he made to her between 2011 and 2013; and (b) possession of, or the value of, a car which he claims she purchased with money that he had advanced to her.

2 The plaintiff in due course applied for summary judgment. The assistant registrar (‘the Assistant Registrar’) entered judgment for the plaintiff on two of the plaintiff's claims and granted the defendant unconditional leave to defend on the rest. The defendant appealed to a judge in chambers against the former order; the plaintiff cross-appealed against the latter order. Both appeals came before me. I have dismissed the defendant's appeal and allowed the plaintiff's appeal, making the defendant's leave to defend conditional on the defendant furnishing security for the remainder of the plaintiff's claim.

3 The defendant has appealed to the Court of Appeal. I therefore...