Wong William v Tan Yong Chim

• Jurisdiction: Singapore
• Judgment Date: 06 June 1968
• Date: 06 June 1968
• Docket Number: Civil Appeal No Y1 of 1968
• Court: Federal Court (Singapore)

Wong William

Plaintiff

and

Tan Yong Chim

Defendant

[1968] SGFC 5

Tan Ah Tah FJ

,

F A Chua J

and

A V Winslow J

Civil Appeal No Y1 of 1968

Federal Court

Civil Procedure–Amendments–Whether correction of misnomer or substitution of new defendant

The plaintiff wanted to bring an action against the owner of a vessel for breach of contract arising from a short delivery of cargo. His solicitors ascertained that the owner was a limited liability company (“the company”) and issued the writ to the company. It emerged that there was a firm comprising the first and second defendants with the same name and at the same address as the company. The defendants ran both the firm and the company, but as two businesses. The writ was eventually amended and issued against the two defendants trading as the firm.

The first defendant entered conditional appearance and applied to have the writ and all subsequent proceedings set aside because the defendants did not own the vessel. The plaintiff applied, inter alia, to have the writ and all subsequent proceedings re-amended to name the company as the defendant. The first defendant objected to the amendment on the basis that it was not a mere correction of a misnomer but constituted the substitution of a new defendant. The judge allowed the plaintiff's application and dismissed the first defendant's application. The first defendant appealed.

Held, allowing the appeal:

(1) The test to be applied in deciding whether a misnomer has taken place or not in the name of the writ was: how would a reasonable person receiving the writ take it? If, in all the circumstances of the case and looking at the writ and statement of claim indorsed thereon as a whole, he would say to himself: “Of course it must mean me, but they have got my name wrong”, then there was a case of mere misnomer which could be corrected: at [17].

(2) A reasonable man receiving the writ in this case would have some doubt as to the identity of the party the plaintiff intended to sue. He would not have been convinced that the company was intended. The firm and the company existed as separate entities and the writ was addressed to the firm: at [19].

The amendment therefore involved the substitution of a new defendant. The claim against the company had become time-barred by the time of the hearing of the applications. Any substitution would deprive the new defendant of the benefit of the time-limit and would not be allowed: at [21].

Colgate-Palmolive (Asia) Ltd v Swedish East Asia Co Ltd [1965-1967] SLR (R) 394 (folld)

Davies v Elsby Brothers Ltd [1961] 1 WLR 170; [1960] 3 All ER 672 (folld)

Whittam v W J Daniel & Co Ltd [1962] 1 QB 271 (refd)

J Grimberg (Drew & Napier) for the appellant

A P Godwin and Ng Wing Cheong (Ng & Ng) for the respondent.

A V Winslow J

(delivering the judgment of the court):

1 Astudy of the history of the proceedings in this action until the making of the orders by Buttrose J in chambers on 6 December 1967 in SC No 2487/67 and SC No 2375/67 respectively, now under appeal, reveals a state of indecision and confusion on the part of the plaintiff/respondent and/or his advisers as to the identity of the party or parties who should have been sued by him in the first instance.

2 Aspecially indorsed writ in this action was issued on 26 October 1966 to “Winsen Steamship Co SA a limited liability company incorporated in Panama and carrying on business at Room 11, New Henry House, 10, Ice House Street, Hongkong [sic]” (hereinafter referred to as “the limited company”) claiming a sum of (M) $18,208.08, with interest, for breach of contract arising from a short delivery of 121 bags of coffee beans which ought to have been delivered to the plaintiff from the SS Winley which arrived in Singapore on 30 December 1965 from Hong Kong.

3 Before issuing this writ...