Chip Hup Hup Kee Construction Pte Ltd v Lim Lian Choon

[1] This is a judgment on an application to amend pleadings made in the course of a hearing. The plaintiff in the proceedings, Chip Hup Hup Kee Construction Pte Ltd is a construction company. The defendant, Lim Lian Choon was a former employee of the plaintiff. He was first employed as the Site Foreman and then as the Plant and Machinery Manager of the plaintiff until his employment was terminated on 30 November 2006.

[2] The plaintiff claimed that the defendant had breached his duties as an employee. The breaches came under three heads, that he:

[3] As the amendment now under appeal relates to head (c), I will set out the relevant paras of the Statement of Claim:

[4] The defendant denied the plaintiff’s claims and counterclaimed that his employment was wrongfully terminated.

[5] In response to the Counterclaim, the plaintiff filed a Reply and Defence to Counterclaim on 17 May 2007 where it asserted in para 11 that it was justified in terminating the defendant’s employment on the grounds, inter alia:

[6] The amendment to which the appeal relates was to add a sub-para (e):

and to re-number the sub-paras which followed.

[7] The application to amend was filed on 20 May 2008 after evidence of the criminal proceedings against the defendant came out in the course of the re-examination of Neo Kok Eng (“NKE”), the Managing Director of the plaintiff on 30 April 2008. When he was questioned on the disposal of three units of bar benders and bar cutter which took place on 11 November 2006, he said:

[8] The plaintiff did not know of the disposal of the equipment till June 2007, whereupon a police report was made. The police report was made on 5 June 2007 by an employee of the plaintiff, Khoo Choon Yean. A copy of the report was exhibited in NKE’s affidavit filed in support of the application, together with a copy of the plaintiff’s solicitors’ letter dated 27 June 2007 to the defendant’s solicitors informing them of the discovery. The police report and the letter showed that the discovery was made after the Reply and Defence to Counterclaim was filed on 17 May 2007.

[9] Mr Khoo, counsel for the defendant did not object when NKE spoke of the transaction and the criminal proceedings. I asked if there was a specific head of claim for the $2,000, and was informed by Mr Ling, counsel for the plaintiff, that the plaintiff was seeking an account of the plant and equipment disposed of. Following that exchange, Mr Khoo argued that the disposal of the bar benders and bar cutter was not pleaded as a ground for the termination of the defendant’s employment[note: 3] and Mr Ling reiterated that the point was already covered in para 11(c) and (d) of the Reply and Defence to Counterclaim, and objected to the evidence.

[10] That first tranche of the hearing ended on 2 May 2008. Before the second tranche of hearing commenced on 6 October 2008, the plaintiff applied to amend its Statement of Claim and Reply to Defence and Counterclaim. There were two amendments involved. The first was to state the defendant was appointed the plaintiff’s Plant and Machinery Manager after his initial appointment as Site Foreman. There was no objection to this amendment. The second amendment was the amendment set out in [6] hereof, which the defendant objected to.

[11] When the application came on for hearing before me on 25 June 2008, Mr Ling submitted that the plaintiff had pleaded in para 11(c) and (d) of the Reply and Defence to Counterclaim that the defendant had failed to account for monies received from the plaintiff’s plant and machinery. As the disposal of the bar benders and bar cutter was discovered after the Reply and Defence to Counterclaim was filed, the plaintiff could not have referred to it. In his affidavit filed in support of the application, NKE stated that the amendment was sought for the sake of good order and clarity, for the sale and the proceeds of the sale of the bar benders and bar cutter to be treated as a part of the plaintiff’s defence to the counterclaim.

[12] The disposal of those items had been a matter of contention between the parties. The solicitors for the parties were in correspondence in June and July 2007 where the transaction was specifically brought up and allegations and denials were exchanged. On the evidence, it was clear that the transaction came within the general scope of para 11(c) and (d) of the Reply and Defence to Counterclaim.

[13] The defendant always knew that the disposal of the equipment was a serious issue. He deposed in his affidavit filed in opposition of the application that criminal proceedings have been instituted against him in DAC No 15743/2008 and the case was fixed for hearing on 11 to 14 August 2008. (The criminal case had begun but had not ended at the present time as far as I am informed.)

[14] He opposed the application to amend on the ground that “(i)t is too late for amendments to be allowed in the middle of trial in respect of matters apparent to the Plaintiffs a long time ago.”[note: 4]

[15] Three cases were cited and relied on by Mr Khoo. The first is Goh Kim Hai Edward v Pacific Can Investment Holdings Ltd [1996] 2 SLR 109 (“Goh v Pacific Can”). This is also a case for wrongful dismissal. In this case, the plaintiff was dismissed as director and group managing director of the defendant company. The defendant company justified his dismissal on the ground that the plaintiff was in breach of his fiduciary duty. The defendant company relied on the fact that the plaintiff had not disclosed that he had been removed as a director of a company associated with the defendant company, although the non-disclosure had not been specifically pleaded by the defendant.

[16] The judge, Judith Prakash J noted (at 139 G):

and added that (at 139 I-140 B):

[17] There is a significant difference between Goh v Pacific Can and the present case. In Goh v Pacific Can, the defendant was relying on a matter that was not pleaded. In the present case, the plaintiff was seeking to include the transaction in the pleadings.

[18] The second case cited was Abdul Razak Valibhoy v Keppel Investment Management Ltd [2002] SGHC 236 (“Valibhoy v Keppel”). In that case, the plaintiff had engaged the defendant, which carried on the business of professional investment managers. He sued the defendant for failing to discharge its duties to him. The plaintiff applied to amend the Further & Better Particulars to his Statement of Claim on the second day of the trial. Belinda Ang Saw Ean JC refused the application and explained at [85]:

[19] The learned judge also considered the effect of the proposed amendment and found at [86] that:

[20] Valibhoy v Keppel is also distinguishable from the present case. The plaintiff in the present case had pleaded that the defendant had disposed of its property in breach of his fiduciary duties, and was seeking to refer to a specific wrongful transaction. It was not seeking to put up a different case by the amendment, as the plaintiff in that case was doing. Unlike the plaintiff in Valibhoy v Keppel, the plaintiff in the present case did not have the information on the disposal of the three items from the start, and the application to amend was filed within three weeks from the time Mr Khoo objected to the evidence, during a break in the hearing.

[21] The third case Mr Khoo cited is Mohammed Anuar Bin Abdul Jalil v Chin Choon Company (Pte) Limited [2002] SGDC 343, a decision of the District Court in which the plaintiff, a clerk of works in a construction project was dismissed by his employer sued for wrongful termination. At the trial, the defendant contended that there were valid reasons for the plaintiff’s employment. One of the reasons given was the plaintiff’s failure to submit omission reports on works, material and goods on time. Although this reason was stated in the letter of termination, it was not pleaded by the defendant in its Defence and Counterclaim.

[22] Counsel referred to two paragraphs from District Judge Laura Lau Chin Yui’s judgment where she held:

[23] It is to be noted that the District Judge declined to rule on the alleged misconduct because it was not pleaded and the defendant did not amend its defence to include that allegation on the failure to submit omission reports on time. The plaintiff in the present case was doing exactly what the District Judge said the defendant in that case should have done, i.e. to amend and include the specific allegation.

[24] In the light of the pronouncements in the cases, the plaintiff was correct in seeking to amend its Reply and Defence to Counterclaim to refer to the disposal of the bar benders and bar cutter. The question is whether the plaintiff should be allowed to amend.

[25] The common law rule relating to wrongful dismissal is that provided good case for dismissal in fact existed, it is immaterial whether or not it was known to the employee at the time of dismissal: Halsbury’s Laws of England vol 16(1B) Fourth Edn Reissue at para 619. In Goh v Pacific Can, Prakash J referred to this rule at 116 H-J. Against this backdrop, the plaintiff was entitled to refer to and rely on the transaction to justify the termination of the defendant’s employment.

[26] Was the amendment application for that purpose made too late? It was not prohibited by the Rules of Court. Under O 20 r 5, a party may amend its pleadings at any stage of the proceedings with the leave of the Court. In deciding whether to allow an amendment, all relevant factors should be considered, including the nature and effect of the amendment, the conduct and interests of each party, and the fair and efficient disposal of cases.

[27] After taking into account the following factors:

I granted the plaintiff’s application to amend.

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[note: 1]Reply and Defence to Counterclaim (Amendment No.1) para 11

[note: 2]Notes of Evidence 30 April 2008, page 69 line 25 to page 70 line 16

[note: 3]Notes of Evidence 30 April 2008, page 108 lines 11-13

[note: 4]Defendant’s Skeletal Arguments para 2.1