Ong Han Ling v Low Ai Ming Sally (Tito Isaac & Co LLP, garnishee)

Woo Bih Li J :

[1] Ong Han Ling (“Ong”) was a client of Low Ai Ming Sally (“Low”) who was an insurance agent. Ong commenced this action (“the Ong action”) against Low for fraudulent misrepresentation made by Low as a consequence of which he paid over US$5 million to an insurer to obtain a non-existent policy of insurance. The money was instead used to pay other policies, which I need not elaborate on.

[2] As a consequence of Low’s default in failing to comply with an order of court requiring her to exchange her affidavit of evidence-in-chief with Ong’s solicitors by 4pm of 23 August 2012, final judgment was entered in favour of Ong against her on 24 August 2012. Under the final judgment, Low was to pay Ong the following:

(a) the sum of US$2,253,514 and $2,991,519;

(b) the sum of US$221,506 and $360,458;

(c) interest; and

(d) costs.

[3] Ong then applied by way of Summons No 4491 of 2012 for a garnishee order to show cause by first attaching all debts due or accruing due from Tito Isaac & Co LLP (“Tito Isaac LLP”) to Low. The application was contested by Engelin Teh Practice LLC (“ETP”) who claimed to be a creditor of Low. After hearing arguments, I dismissed Ong’s application for a garnishee order to show cause. Ong has filed an appeal to the Court of Appeal.

[4] As intimated above, the Ong action was filed (on 16 March 2010) to recover money from Low which Ong had paid in reliance of alleged fraudulent misrepresentation from Low.

[5] Ong also applied for a Mareva Injunction (“MI”) against Low by way of an ex parte Summons No 1166 of 2010 filed on 16 March 2010. I heard the application on the same day and granted the MI. Para 6 of the MI ordered Low to disclose all her assets in writing to Ong within 14 days after the MI was served on her. Paras 7 and 8 of the MI stated:

[6] Subsequently, various applications were made by Ong and by Low. Ong was applying, inter alia, for committal orders to be made against Low for her alleged failure to disclose all her assets as required by the MI. Low was applying for, inter alia, an increase in the amount she could utilise for legal advice and representation.

[7] I directed that all the applications should be heard together as the information and arguments used in one application might be relevant and material to another application. For example, if indeed Low had failed to disclose all her assets and she had assets in Indonesia, as Ong was alleging, that would have a bearing as to whether the court should allow her to use assets in Singapore to pay for her legal advice and representation beyond the $10,000 which had initially been allowed under the MI.

[8] These applications were not fully heard as there was delay, for reasons which I need not elaborate on. After Ong obtained his final judgment, he did not pursue his applications for committal for the time being although I have recently learned that his solicitors have sought a hearing date for these applications. Neither did Low pursue her applications.

[9] In the meantime, Low had obtained the services of ETP to advise and represent her in respect of Ong’s claim. She was also facing criminal charges for which she was apparently also represented first by ETP and then by another set of solicitors.

[10] Subsequently, ETP decided not to continue to act for Low. They applied for an order to discharge themselves and on 22 February 2012, such an order was granted.

[12] As stated above, ETP obtained a garnishee order to show cause on 27 June 2012. The return date was 11 July 2012.

[13] Before 11 July 2012, Ong and his solicitors had learned about the steps which ETP was taking to obtain a final garnishee order. Ong filed Summons No 3298 of 2012 on 3 July 2012 to ask for leave for Ong to intervene in ETP’s action, ie, Suit No 388 of 2012 and to seek various orders including an order to set aside the final judgment which ETP had obtained against Low. If that judgment was set aside, then ETP’s garnishee proceedings would become academic before me. Ong’s application was fixed for hearing before me on 4 July 2012, ie, seven days before the return date of ETP’s application for a final garnishee order on 11 July 2012. I directed that both Ong’s application to intervene and ETP’s application for a final garnishee order be adjourned to a date to be fixed and gave directions in respect of the applications.

[14] The two applications were eventually fixed for hearing before me on 5 September 2012. By then, Ong had obtained his final judgment on 23 August 2012. He had also filed three more applications:

(a) Summons No 3845 of 2012 filed on 27 July 2012 for an extension of time to file an affidavit to support his earlier summons to intervene in ETP’s action.

(b) Summons No 4433 of 2012 (in Ong’s action) filed on 30 August 2012 for, inter alia, an order to vary para 2 of the MI so that certain money held by Tito Isaac LLP in a conveyancing account with UOB would be paid out to Ong.

(c) Summons No 4491 of 2012 (in Ong’s action) filed on 4 September 2012 for a garnishee order to show cause.

[15] However, only Summons Nos 3845 and 4433 of 2012 were also fixed for hearing on 5 September 2012 and not the last one. Hence, on 5 September 2012, the following four applications were fixed for hearing before me:

(a) Summons No 3074 of 2012 for a final garnishee order.

(b) Summons No 3298 of 2012 for leave for Ong to intervene in ETP’s action.

(c) Summons No 3845 of 2012 for an extension of time for Ong to file an affidavit to support his application to intervene in ETP’s action.

(d) Summons No 4433 of 2012 to vary para 2 of the MI as stated above.

[17] Summons No 3845 of 2012 became uncontentious and I granted it.

[19] I come back now to ETP’s application for a final garnishee order. It is useful to bear in mind that Ong had filed his action earlier, ie, on 16 March 2010. ETP’s action was filed more than two years later on 11 May 2012. Yet ETP obtained its final judgment earlier on 4 June 2012 whereas Ong obtained his on 23 August 2012. This was because ETP’s final judgment was a judgment in default of appearance by Low whereas Ong’s was a default judgment only because Low had failed to comply with an unless order, as stated above at [2]. Consequently, ETP was ahead of the game when it came to applying for a final garnishee order.

[20] In the light of para 7 of the MI which restricted Low to utilising only $10,000 for legal advice and representation, I was doubtful whether ETP’s final judgment was in order since there was no variation of the MI in the first place to allow Low to incur more than $10,000. It seemed to be a backdoor means of circumventing the MI without an application being made for a variation of the MI first. It seemed to me that ETP should not have obtained a judgment in default of appearance without first applying for and obtaining an order to vary the MI to allow Low to incur more than $10,000 for legal advice and representation especially since ETP was aware of the MI as it was acting for Low to vary the MI. ETP should also have disclosed the MI to the assistant registrar granting the judgment in default of appearance before obtaining the judgment. However, it was not necessary for me to reach a conclusion on this point as there was another factor militating against the making of a final garnishee order in favour of ETP.

[21] Singapore Court Practice 2009 (Jeffrey Pinsler gen ed) (LexisNexis, 2009) (“Singapore Court Practice 2009”) states at para 49/1/6:

[22] ETP and Ong appeared to be on common ground that Low was insolvent. In the light of that and the fact that Ong’s cause of action had arisen first and that he had not been shown to have been dilatory in pursuing his claim and given my doubt about the validity of ETP’s final judgment, it seemed to me unjust to make the final garnishee order which ETP was seeking. In the circumstances, I dismissed ETP’s application for the same and discharged the garnishee order to show cause.

[23] However, as Ong’s own garnishee proceeding was still pending, I directed that it be heard before me.

[24] There was no appeal against any of the decisions I made on 5 September 2012 in respect of the four applications I mentioned.

[25] Ong’s application for a garnishee order to show cause came up for hearing before me on 8 November 2012. He was seeking a garnishee order to show cause to attach money held by Tito Isaac LLP for Low. The money apparently comprised the net sale proceeds arising from the sale of an apartment owned by Low at Cairnhill Plaza. The money had been deposited in an account held by Tito Isaac LLP with UOB. Accordingly, although ETP’s garnishee proceeding had named UOB as the garnishee and Ong’s garnishee proceeding had named Tito Isaac LLP as the garnishee, both ETP and Ong appeared to be targeting the same money.

[26] At the hearing on 8 November 2012, Ong’s counsel Mr Kamdar took the point that Low was not necessarily insolvent because Ong was alleging that Low has assets in Indonesia. Specifically, Ong was alleging that he had learned that Low has trading accounts with two Indonesian stockbrokers PT Mahastra Capital and PT Valbury Asia Securities.

[27] Although I was aware about Ong’s allegations regarding Low’s trading accounts with Indonesian stockbrokers, which allegations had been made in his applications in respect of the committal proceedings, Mr Kamdar’s argument took me by surprise because, as I mentioned above, it appeared to be common ground at the hearing on 5 September 2012 that Low was insolvent. Mr Kamdar was present then. He must have known from my reference to para 49/1/6 of Singapore Court Practice 2009 on that day that Low’s insolvency was the main reason why I was not inclined to grant ETP the final garnishee order. If he was not accepting that Low was insolvent, he ought to have said so then. Yet he was content not to say so when it suited Ong’s interest.

[28] In any event, I was not persuaded that Low was solvent. It was unclear as to exactly what Low’s assets in Indonesia comprised of and the value of such assets. Furthermore, there might be considerable difficulty in taking steps to recover those assets.

[29] It seemed to me that Ong knew that, at the very least, it would be difficult to recover any of Low’s assets in Indonesia. It was telling that in a letter from his solicitors to the Registrar of the Supreme Court dated 3 July 2012, p 3 thereof stated that, “there appears to be a strong suspicion of funds overseas beyond reach”. That was why he was trying so hard to obtain a garnishee order to show cause with a view to obtaining a final garnishee order eventually.

[30] It seemed to me unjust to grant Ong a garnishee order to show cause in the light of what had transpired. As I mentioned above, his application was not fixed for hearing on 5 September 2012 when I heard ETP’s application for a final garnishee order. Fortunately, I had ensured that his application be heard by the same judge who had heard ETP’s application so that the court hearing his application would be fully aware of what had transpired.