Wee Soon Kim Anthony v Lim Chor Pee and Another

• Judge: Lai Kew Chai J
• Judgment Date: 30 August 2005
• Neutral Citation: [2005] SGHC 159
• Citation: [2005] SGHC 159
• Defendant Counsel: Andre Arul and Ling Leong Hui (Arul Chew and Partners)
• Published date: 30 August 2005
• Plaintiff Counsel: Appellant in person
• Date: 30 August 2005
• Docket Number: Originating Summonses Bankruptcy (Registrar's Appeals Nos 35–37 of 2005)
• Court: High Court (Singapore)
• Subject Matter: Whether applications amounting to action to recover costs less than a month after delivery of bill of costs to client and should be set aside,Section 62 Bankruptcy Act (Cap 20, 2000 Rev Ed), s 118 Legal Profession Act (Cap 161, 2001 Rev Ed),Statutory demand,Bill of costs,Appeal against solicitors' successful application to set aside statutory demands issued under s 62 Bankruptcy Act,Bankruptcy,Whether bills of costs giving rise to valid counterclaim, set-off or cross demand,Whether existence of agreement as to costs and status of firm as partnership or sole proprietorship amounting to "genuine triable issues",Appeal against solicitors' successful application to set aside statutory demands issued under s 62 Bankruptcy Act on ground of counterclaim under bills of costs rendered,Legal Profession,Section 62 Bankruptcy Act (Cap 20, 2000 Rev Ed), rr 97, 98(1), 98(2) Bankruptcy Rules (Cap 20, R 1, 2002 Rev Ed),Insolvency Law

30 August 2005

Lai Kew Chai J:

1 This appeal arose out of the orders of Assistant Registrar Joyce Low (“the Assistant Registrar”) setting aside the statutory demands served on the respondent debtors by the appellant creditor. Being dissatisfied with the Assistant Registrar’s orders, the appellant creditor appealed to this court. After considering the submissions for both sides, I decided to dismiss the appeal. I now give my reasons.

The background

2 The respondents, Lim Chor Pee (“LCP”) and Marc Lim Hsi Wei (“ML”), are both partners of M/s Chor Pee & Partners (“the firm”), a firm of solicitors practising in Singapore. Anthony Wee Soon Kim (“the appellant”) was a client of the firm at the material time.

3 In July 2001, the appellant brought Suit No 834 of 2001 against UBS AG for misrepresentation (“the Suit”). His solicitors then were M/s Engelin Teh & Partners (“Engelin Teh”). Subsequently, M/s Goh Aik Leng & Partners took over the matter but soon asked to be discharged as the appellant’s solicitors. LCP then agreed to act for the appellant sometime in March 2003, while the Suit was part-heard.

4 The Suit was dismissed by Kan Ting Chiu J on 8 December 2003, as was the appeal from Kan J’s decision, in Civil Appeal No 1 of 2004. The appellant was represented by the firm in both the Suit and the appeal. In addition, the firm had acted for the appellant in the following matters:

(a) Bill of Costs of Thomas Sim (Engelin Teh);

(b) complaint against Gerald Godfrey QC; and

(c) Bill of Costs No 112 of 2003 in Civil Appeal No 114 of 2002 relating to the admission of Gerald Godfrey QC.

5 While the above matters were ongoing, the appellant provided loans to the firm and LCP personally. It was agreed, when the advances were first extended, that LCP would make monthly repayments of $7,500 to the appellant. However, only one payment was made by LCP.

6 The appellant thus issued two statutory demands under s 62 of the Bankruptcy Act (Cap 20, 2000 Rev Ed) claiming a total of $300,000 and $84,000 against the firm and LCP respectively. On 3 January 2005, LCP was served with both statutory demands, claiming the debts owed by him as a partner of the firm as well as by him personally. ML was likewise served with a statutory demand on the same day, in his capacity as a partner of the firm, seeking repayment of the loan to the firm.

7 On 13 January 2005, the firm issued four bills to the appellant seeking payment of a total of $610,780 as legal fees for the Suit, Civil Appeal No 1 of 2004, the Bill of Costs of Thomas Sim and the complaint against Gerald Godfrey QC, less the amount already paid on account of the retainer for the Suit. Another bill dated 1 February 2005 was later issued to the appellant claiming $24,958.50 for work done in Bill of Costs No 112 of 2003 in Civil Appeal No 114 of 2002 relating to the admission of Gerald Godfrey QC.

8 Petition of Course No 3 of 2005 was later filed by the firm on 16 March 2005 seeking an order of taxation for the five bills of costs. This petition was granted by Lai Siu Chiu J, who also dismissed the appellant’s application to strike out the petition. The appellant has filed a Notice of Appeal against Lai J’s decision.

9 On 14 January 2005, the respondents filed Originating Summons Nos 3, 4 and 5 of 2005 to set aside the statutory demands of 3 January 2005 on the ground that there was a valid counterclaim, set-off or cross demand against the amount claimed by the appellant. The statutory demands were set aside by the Assistant Registrar on 16 February 2005, following which the appellant appealed.

The appellant’s submissions

10 There was no dispute as to the quantum of the loans extended by the appellant to the firm and to LCP in his private capacity. The primary dispute was over whether the respondents had a valid counterclaim, set-off or cross demand under the bills of costs rendered to the appellant.

11 Specifically, the appellant contended that the respondents were not entitled to render a bill for $612,300 for work done in relation to the Suit. This contention was premised on an alleged agreement between the parties to cap costs for the Suit at $275,000 on a lump sum basis, including any settlement or discontinuance but excluding all court fees and disbursements.

12 According to the appellant, this agreement was entered into through an exchange of e-mails between the parties (“the exchange of e-mails”), the first of which was sent by LCP to the appellant on 2 April 2003 at 4.45pm. It referred the appellant to an attachment, which stated:

Suit No. 843 of 2001

Fee Agreement between A S K Wee and Chor Pee & Partners
Global Brief Fee including all court attendances	$275,000.00
Payable as follows: 1st instalment upon confirmation of retainer	$50,000.00
2nd instalment upon filing Notice of Change of Solicitors and SIC to amend Statement of Claim on or before 30 April 2003	$50,000.00
3rd instalment on or before 15 May 2003	$50,000.00
4th instalment on or before 30 May 2003	$50,000.00
5th instalment on or before 15 June 2003	$50,000.00
6th instalment on or before 30 June 2003	$25,000.00
Total	$275,000.00

13 The appellant’s response at 5.10pm the same day was:

Dear Chor Pee,

I thank you for your proposal. Please let me know if you [are] prepared to cap your professional fees and not on a per day basis …

14 At 7.12pm, LCP replied as follows:

Dear Tony

Herewith revised fee agreement on a lump sum basis up to conclusion of trial including any settlement or discontinuance but excluding all court fees and disbursements.

Regards

Lim Chor Pee

There was no attachment to this e-mail.

15 The appellant submitted that, pursuant to the decision of Judith Prakash J in SM Integrated Transware Pte Ltd v Schenker Singapore (Pte) Ltd [2005] 2 SLR 651 (“SM Integrated Transware”), the exchange of e-mails satisfied the requirements under s 111 of the Legal Profession Act (Cap 161, 2001 Rev Ed) (“LPA”) for agreements as to costs for contentious businesses to be in writing and signed by the client. The alleged agreement as to costs was thus valid and binding upon the respondents.

16 It was not disputed that the sum of $275,000 had already been paid by the appellant to the firm for the costs of the Suit. Consequently, it was the appellant’s submission that the respondents were not entitled to any counterclaim, set-off or cross demand for additional legal fees in relation to the Suit. The other four bills were also disputed on the ground that they were sham invoices calculated to defeat his statutory demands.

17 The appellant further submitted that the respondents were barred under s 118 of the LPA from claiming under the bills of costs until the expiry of one month after the date on which they were delivered to the appellant. He therefore contended that Originating Summons Nos 3, 4 and 5 of 2005, filed one day after the day on which the bills were rendered, were “of no legal effect”.

18 Finally, the appellant argued that LCP was not entitled to set off the legal fees allegedly due to the firm against his personal debt because the firm was not a sole proprietorship, even if LCP was the sole equity partner. The statutory demand issued against LCP personally should thus not be set aside even if there was a valid counterclaim, set-off or cross demand under the bills of costs.

The respondents’ submissions

19 The respondents sought to set aside the statutory demands served on them by the appellant on the ground that they have a valid counterclaim, set-off or cross demand against the appellant for legal fees due under the five tax invoices rendered to the appellant. Consequently, there was a “genuine triable issue” sufficient under the Bankruptcy Rules (Cap 20, R 1, 2002 Rev Ed), read with para 66(3) of the Supreme Court Practice Directions, to warrant the setting aside of the statutory demands.

20 The respondents submitted that the five bills of costs rendered to the appellant were valid. In particular, they were entitled to claim fees in relation to the Suit beyond the amount already paid, because the exchange of e-mails only evidenced the negotiations between the parties without any final agreement ever being reached. In fact, there was no attachment to LCP’s final e-mail sent at 7.12pm and no reply from the appellant. Subsequent attempts by LCP to confirm an agreement on the costs of the Suit also appear to have been rebuffed by the appellant.

21 In addition, the respondents submitted that there was no agreement on costs in writing, let alone any signature, electronic or otherwise, by the appellant on such a written agreement. There was thus no valid agreement under s 111 of the LPA. The respondents further argued that SM Integrated Transware should be distinguished from the present case as it related to s 6(d) of the Civil Law Act (Cap 43, 1999 Rev Ed) rather than s 111 of the LPA.

22 The respondents also contended that the order made for the taxation of the bills of costs in Petition of Course No 3 of 2005 demonstrated that no agreement as to costs for the Suit had been reached between the parties. They also submitted that they were not precluded under s 118(1) of the LPA from counterclaiming or seeking a cross demand against the appellant, and that, in any event, one month had already elapsed from the date the bills were first delivered to the appellant.

23 On the issue of whether LCP could found a set-off against his personal debt on the fees due under the bills of costs, the respondents submitted that LCP was not merely the sole equity partner of the firm, but the sole proprietor as well. LCP was thus absolutely entitled to all the firm’s billings and, consequently, to set off the fees due to the firm against his personal debt. Notwithstanding this assertion, I noted that LCP nonetheless submitted, in his affidavit dated 14 January 2005 at para 4, as follows:

It is not disputed that as partner, Marc Lim Hsi Wei is also liable for the debts of the firm.

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