Wee Soon Kim Anthony v UBS AG (No 2)

• Judge: Kan Ting Chiu J
• Judgment Date: 06 June 2003
• Neutral Citation: [2003] SGHC 125
• Citation: [2003] SGHC 125
• Defendant Counsel: Hri Kumar (Drew & Napier LLC)
• Published date: 15 January 2004
• Date: 06 June 2003
• Subject Matter: Plaintiff seeking to amend Statement of Claim in course of trial,Amendment of Statement of Claim in course of trial,Responsibility of counsel with emphasis on efficient conduct and disposal of cases,Pleadings,Civil Procedure,Amendment,Whether new facts were raised and time would be saved,Whether defendant would be put at a disadvantage
• Court: High Court (Singapore)
• Plaintiff Counsel: Lim Chor Pee (Lim Chor Pee & Partners),M Rani (Lim Chor Pee & Partners)

1 I refused an application by the plaintiff Anthony Wee Soon Kim to amend his statement of claim in this action for the fourth time. He is appealing against my order.

Background

2 The plaintiff was a client of the defendant bank UBS AG. He made foreign exchange transactions in Malaysian ringgits and American dollars through the defendant and participated in the Dynamic Floor Fund managed by it. He was unhappy with the services rendered by the defendant and its employees in these transactions which resulted in losses. When his complaints were not resolved to his satisfaction, he sued the bank.

3 The action was filed on 4 July 2001 and has come on for hearing between 26 February 2002 and 15 March 2002. The plaintiff was in the course of giving his evidence. The action is fixed for further hearing again from 23 June 2003 to 1 August 2003.

4 After the completion of the first tranche of hearing, counsel for the plaintiff Ms Engeline Teh SC discharged herself from acting further for him. Two applications were made to admit Queen’s Counsel to act in her place, but both applications were refused. Mr Lim Chor Pee now acts for the plaintiff.

5 On 6 May 2003 the plaintiff applied to amend his statement of claim following the previous amendments made on 11 September 2001, 31 January 2002 and 28 February 2002.

6 An affidavit was sworn by Mr Lim in support of the application. He deposed that

6. All the documentary evidence relating to the transactions are now before the Court. The proposed amendments are based entirely on the available evidence. In essence, the issues before the Court in our submission would be based on the inference to be drawn from the documentary evidence and the legal interpretation to be put to it.

7. Therefore, in my respectful submission, the proposed Fourth Amended Statement of Claim will shorten the trial as no new facts or documents will be involved. (Emphasis added)

8. In summary, the issues which have now been pleaded are as follows:-

(a) Whether the Defendant has assumed the role of the Plaintiff’s financial investment adviser?

(b) If so, when did the Defendant assume such a role?

(c) If the Defendant had assumed the role of the Plaintiff’s financial investment adviser, did the Defendant become a fiduciary of the Plaintiff?

(d) If so, was the Defendant in breach of its fiduciary duties?

(e) Alternatively, had the Defendant committed professional negligence in advising the Plaintiff in connection with his Ringgit portfolio?

(f) If there was a breach of fiduciary duty or there is professional negligence, what are the damages sustained by the Plaintiff?

9. Several paragraphs in the existing Statement of Claim have been deleted and replaced with new paragraphs to make the narration more coherent and factual.

7 Mr Lim also submitted that the trial will be shortened if the amendments are allowed because the plaintiff would not be proceeding with the allegations of fraudulent and negligent misrepresentation and collateral contract raised by him, and will rely on breach of fiduciary duties and negligence.

8 The proposed amendments seek to delete large portions of the existing statement of claim and bring in substantial new portions. Mr Hri Kumar, counsel for the defendant prepared a table which set out the parts of the existing statement of claim affected by the proposed amendments, as well as the new amendments introduced by the proposed amendments.

9 The table showed changes in the facts alleged by the plaintiff, facts not raised before, and new breaches of fiduciary duties. New fiduciary duties are pleaded in addition to the duty "not to allow itself to be in a position in which its personal interests conflicted with the Plaintiff’s interests" currently pleaded. Mr Lim did not take issue with the table or Mr Hri Kumar’s analysis of the proposed...