South East Enterprises (Singapore) Pte Ltd v Hean Nerng Holdings Pte Ltd and another

Steven Chong J:

[1] This case centres on the duties owed by the execution creditor and the court bailiff to the execution debtor under a writ of seizure and sale. As such, it also bears upon the relationship between the execution creditor who obtains the writ of seizure and sale and the bailiff appointed to execute it. These are the two interlocking underlying principles of law upon which the plaintiff’s action now rests. The dispute began in February 2004, when the plaintiff, who occupied three bays in the 1 defendant’s warehouse, ran into arrears in rent and later failed to enter an appearance following service of the 1 defendant’s writ of summons. Default judgment was entered and the 1 defendant obtained a writ of seizure and sale (“the WSS”) to satisfy the judgment debt.

[2] The parties’ versions of events differ at this point. The defendants maintain that only machine parts in the first two warehouse bays, designated A2 and A3, were seized. The plaintiff asserts that machinery in a third bay, A4, though not seized, were subsequently auctioned off. One would think that this is a factual detail easily verifiable by cross-checking the Warehouse Service Agreement, Notice of Seizure and Inventory (Form 94) and the sale records, but neither the plaintiff nor the 2 defendant, who as bailiff conducted the actual seizure, drew up a list of the items stored in the warehouse. Indeed, there is a fundamental dispute as to what exactly had been stored in the three bays to begin with. Even the tonnage of the machinery was not documented upon entry into the Warehouse Service Agreement, such that a comparison between the weight of the machine parts stored and what was eventually sold and delivered cannot be conducted. The only common ground is that some machine parts belonging to the plaintiff had been seized, auctioned and subsequently on-sold to a Malaysian sawmill. The plaintiff’s Managing Director, Mr Stanley Adam Zagrodnik (“Mr Zagrodnik”), has since informed the court that the Malaysian sawmill is in possession of some machine parts which were purportedly stored in A4 at the time of the execution of the WSS.

[3] This begs the question as to why a claim in conversion for the machine parts in A4 is not also before the court. Counsel for the plaintiff, Mr R Govintharasah (“Mr Govin”) was unable to provide me with a reason, except to say, quite rightly, that he is bound by his pleadings. In any event, the issue of whether a claim in conversion would have succeeded on points of both law and fact is now academic since the plaintiff is presently time-barred from commencing such an action. As a result, the plaintiff’s only remedy for recovery of its machine parts or their equivalent value centres on the propriety of the defendants’ conduct in the enforcement of the WSS.

[4] The plaintiff is a general wholesaler and metal trader involved in the import and export of wood panel and woodworking equipment. It is “basically operated and managed personally” by Mr Zagrodnik. The 1 defendant operated an open-air warehouse at 27 Jalan Buroh. On or about 17 February 2003, the plaintiff entered into a Warehouse Service Agreement with the 1 defendant to store various machine parts in bays A2 and A3 at the premises for a monthly fee of S$3,000. Shortly thereafter, a second agreement was entered into on or about 31 March 2003 for the use of bay A4 for the same purpose, bringing the total monthly rent to S$4,900. The 2 defendant was the court bailiff who executed the WSS. The background under which the court bailiff was added as the 2 defendant is explained at [19] below.

[5] It would be apposite at this point to describe these machine parts. There were two sets of machine parts, one of which formed a plant for the manufacture of wooden hard and soft-boards and the other for the manufacture of wooden particle boards. Although Mr Zagrodnik furnished a full list of machine parts for each plant in his affidavit of evidence-in-chief (“AEIC”), it appears that these machine parts were not enumerated in either the Warehouse Service Agreement or in the letter granting the plaintiff additional space at A4.

[7] I pause here to consider Mr Zagrodnik’s assertion that, after default judgment had been entered, he met Mr Kelvin Lim, the Managing Director of the 1 defendant (“Kelvin”) and informed him that the particle board machinery was due to be sold for over US$350,000 to a Pakistani buyer. Mr Zagrodnik claims that they reached an oral agreement not to enforce the default judgment so that the plaintiff would have time to complete the sale and satisfy any outstanding arrears. It should be emphasised that the breach of this purported agreement has not been included in the plaintiff’s pleadings. As such, the substantive resolution of this case does not turn on whether the plaintiff can establish such an agreement. Moreover, it is not the plaintiff’s evidence that the 2 defendant had been informed of this purported agreement, so that no liability can be imputed to the latter even if Mr Zagrodnik’s assertions are proved. However, the veracity of this agreement is nevertheless relevant as it may offer a possible explanation for the plaintiff’s passivity between March and July 2004, despite being served with the WSS.

[8] Kelvin only accepts that Mr Zagrodnik had approached him and “asked for indulgence”, but denies being informed of the machinery’s value or having entered into an agreement not to enforce the judgment debt. His version of the events is that he told Mr Zagrodnik to speak to the 1 defendant’s lawyers instead. I see no reason to doubt Kelvin’s account. In the context of Mr Zagrodnik’s persistent failure to make payment on the outstanding storage rent, it is highly improbable that Kelvin would accede to a postponement without even seeing proof of any agreement with the Pakistani buyer. It should also be borne in mind that Kelvin had earlier agreed to allow the plaintiff to pay back the arrears in instalments, provided Mr Zagrodnik signs a personal Letter of Undertaking prepared by the 1 defendant’s solicitors to pay the arrears. However, Mr Zagrodnik failed to do so. This renders it all the more unlikely that Kelvin would, having already obtained default judgment in the 1 defendant’s favour, then reverse his position and agree to a wholly informal and indefinite postponement for the benefit of the plaintiff. Similarly, it is incongruous that Mr Zagrodnik made no effort to formalize this purported agreement despite the fact that the 1 defendant had every reason to exercise its rights under the WSS. In addition, Mr Zagrodnik’s account fails to provide basic details such as the duration of the agreed postponement and the eventual terms of payment. Indeed, it will be seen at [62] below that Mr Zagrodnik, under cross-examination, had prevaricated as to when exactly the agreement took place. These considerations all militate against the probity of Mr Zagrodnik’s assertions, and I am compelled to conclude that the plaintiff has failed to satisfy its burden of proof in relation to the purported oral agreement.

[9] The 1 defendant filed the Praecipe for Writ of Seizure and Sale on 19 March 2004 for a total sum of S$29,771.57. It was at this point that certain procedural anomalies arose. In the Praecipe for Writ of Seizure and Sale, the 1 defendant’s solicitors listed the plaintiff’s “registered office” at 47 Beach Road as well as their “place of business” at 27 Jalan Buroh, without specifying at which location the WSS was to be executed. This is also the case with the WSS issued to the bailiff. However, in another document filed on the same day simply titled “Praecipe”, the 1 defendant’s solicitors mention only the plaintiff’s registered office at 47 Beach Road. In this document, they also requested the Registrar not to inform the plaintiff of the execution date.

[10] On 23 March 2004, the bailiff’s office sent a General Notice to the plaintiff’s office at 47 Beach Road, stating that the WSS would be executed “at this address”. Six days later, on 29 March 2004, the bailiff’s office informed the 1 defendant in writing that it was to accompany the bailiff “to the place of execution at 47 BEACH ROAD”. The 1 defendant then wrote to the bailiff’s office requesting the place of execution to be changed to 27 Jalan Buroh instead of 47 Beach Road. A second letter was then sent to the 1defendant specifying that it was to accompany the bailiff to 27 Jalan Buroh. A second General Notice was, however, not sent to the plaintiff prior to the execution of the WSS. It would, therefore, appear that the plaintiff was not specifically told that its property at 27 Jalan Buroh would be seized. Having said that, Mr Zagrodnik, under cross-examination, admitted that he was aware of the WSS which was served at the 47 Beach Road office address. It should also be noted that there is no provision in the Supreme Court of Judicature Act (Chapter 322, Section 80) Rules of Court (“Rules of Court”) requiring the bailiff’s office to issue a General Notice to the execution debtor prior to the date of seizure.

[11] The WSS was executed on 11 May 2004. The 2 defendant was accompanied by a representative of the 1 defendant, Mr Eugene Lim Chang Chye (who has since left the employment of the 1 defendant) (“Eugene”). Eugene handed the 2 defendant a letter of indemnity and pointed out the machine parts which were to be seized. It is the 2 defendant’s evidence that he only seized the machine parts in A2 and A3. Two other employees of the 1 defendant were also present at the warehouse, a security guard simply referred to as “John” and Mr Yeo Hock Heng (“Mr Yeo”), who corroborates the 2 defendant’s account. Under cross-examination, the 2 defendant further particularized his description, testifying that the machine parts seized occupied only a “quarter”, the “extreme right portion”, of the two bays. Whilst he inspected the machine parts, the 2 defendant appraised them to be worth S$15,000. When questioned, he explained that he had arrived at this figure, first, by keeping in mind that items worth more than S$2,000 would have to be sold by public auction and, second, by a lay evaluation of the items. I would also add that this was the 2 defendant’s first experience with seizure of machinery.

[12] After being told by two workers at the warehouse that the machinery in A2 and A3 were “mesin potong kayu” or “machines for cutting timber”, the 2 defendant filled up the Inventory of items seized as “all machineries and parts of timber at lot A2 to A3 (inside)”. He testified at the trial that by “machineries and parts of timber” he meant “machines to cut timber”, and that he pasted seals on parts of all the machinery seized at A2 and A3. At the end of this process, the 2 defendant then went to look for Eugene at a container office situated on the premises. There, the 2 defendant left the Notice of Seizure and Inventory (Form 94), as well as a General Notice addressed to the plaintiff at 27 Jalan Buroh, with Eugene and told him that they were for the plaintiff.

[13] The first Notice of Sale was issued on 24 May 2004, setting the auction date on 9 June 2004. The 2 defendant went to the warehouse and handed a copy of this Notice to the security guard. He also posted a copy of the Notice on the notice board at the Registry of the Subordinate Courts. On 26 May 2004, Kiong Chai Woon and Company Pte Ltd was appointed as the auctioneer. The advertisement of the auction sale was to be published on 7 June 2004 but the publishers failed to do so and the advertisement ran two days late, on 9 June 2004. As a result, a new Notice of Sale was issued on 7 June 2004 specifying that the auction would be held on 11 June 2004 at 3 pm. This second Notice was also handed to the warehouse security guard and posted on the Registry notice board at the Subordinate Courts.

[14] The auction was held at the warehouse on 11 June 2004 and the seized machine parts were sold for S$51,500 to the highest bidder, Kim Hock Corporation Pte Ltd (“Kim Hock”). Kim Hock arranged for the machine parts to be stored at the warehouse until on or about 22 July 2004. Its Managing Director, Mr Lim Kim Hock (“Mr Lim”), who has 40 years of experience in the scrap metal and machinery business, examined the machine parts on the day of the auction. His view was that they were timber-related machinery but were too old and rusty to be used. He therefore assessed the scrap metal value of the machine parts as about S$50,000, based on their weight.

[15] The sold machine parts were then stored temporarily at the warehouse until Kim Hock arranged for their transfer to its premises on or about 22 July 2004. It should be noted that from June 2004 onwards, bay A2 had been leased to another company, Vigour Technologies Ltd (“Vigour”), for storage of their goods. After the machine parts were moved out of the bays, Vigour took over A2. There was some dispute as to the exact date on which Vigour entered into occupation of A2. In a letter dated 10 September 2004, Mr Albert Yeo of Vigour wrote to Mr Zagrodnik informing him that, according to their records, they took possession of A2 on 15 April 2004 based on the commencement date of the payment of the rental. Mr Yeo, however, agreed under cross-examination that he does not have any personal knowledge as to when Vigour actually commenced occupation of bay A2. In cross-examination Kelvin clarified that Vigour’s goods were stored in a temporary area until Kim Hock moved the seized machinery out of bay A2.

[16] Shortly after, Kim Hock on-sold the machine parts to a business associate, Mr Lau Swee Nguong (“Mr Lau”). The machine parts are, to this day, still at Mr Lau’s premises at Hua Seng Sawmill Sdn Bhd (“Hua Seng”) in Sibu, Sarawak. They remain unassembled.

[17] Around 5 July 2004, Mr Zagrodnik visited the warehouse with a Pakistani business associate, Mr Mushtaq (the Managing Director of Best Chipboard Industries (“Best Chipboard”)), to inspect the machine parts. His evidence is that he immediately noticed that “several pieces of machinery” were missing. The next day, he confronted Eugene about the missing machine parts. Eugene purportedly denied any knowledge of their whereabouts. Mr Zagrodnik claims that he was only appraised of the seizure when the duty security guard handed him some documents consisting of the Notice of Seizure and Inventory and Notice of Sale. It would appear that Mr Zagrodnik did not previously receive the second General Notice issued by the 2 defendant.

[18] The plaintiff’s solicitors wrote to the 1 defendant on 9 July 2004 claiming that the 1 defendant’s re-entry into the leased premises at A2 to A3 was wrongful and constituted a trespass. On or around 21 July 2004, Mr Zagrodnik also made a police report against the 1 defendant, claiming that there were eight missing items from the premises worth about S$97,000.

[19] The plaintiff then applied to set aside the Default Judgment and the WSS. This was dismissed by the Deputy Registrar, whose decision was affirmed on appeal by both the District Court and, on 3 February 2005, the High Court. More than four years after the High Court’s decision and five years after the execution of the WSS, the plaintiff commenced the present suit on 17 April 2009 against the 1 defendant and the “Bailiff, Subordinate Courts of Singapore”. The plaintiff later amended its claim to replace the latter with the Attorney-General, but this action was successfully struck out pursuant to s 6(3) of the Government Proceedings Act (Cap 121). In September 2009, the High Court upheld the decision to strike out the claim against the Attorney-General. The plaintiff then obtained leave to name the bailiff who executed the WSS, Mr Sapuan Sanadi, as the 2 defendant.

[20] Stated briefly, the plaintiff’s case is that the WSS was executed negligently and in breach of the 2 defendant’s statutory duty. Embedded within this is the proposition that the 2 defendant, as court bailiff, acted as the agent of the 1 defendant, such that the latter is vicariously liable for the former’s negligence. The particulars of this claim can be further deconstructed into the following alleged breaches presented in chronological order:

(a) Inadequate Notice of Seizure as the 2 defendant left the relevant documents at the 1 defendant’s premises and in the hands of their employees.

(b) Failure to sufficiently particularize the seized machinery.

(c) Excessive seizure as the value of the seized machinery far exceeded the judgment debt.

(d) Failure to publish an adequate advertisement which described the true nature of the seized machinery, so as to attract the attention of appropriate buyers.

(e) Inadequate Notice of Sale as the 2 defendant left the relevant documents at the 1 defendant’s premises, in the hands of their employees, and failed to allow seven days to expire before the actual sale on 11 June 2004, as required under O 46 r 23 of the Rules of Court.

(g) Sale of machinery in A4 which had not been seized pursuant to the WSS.

(h) Failure to sell the seized machinery at the best possible price.

[21] The plaintiff asserts that the actual market value of the two seized machinery amounted to S$1,224,294.50, this being the combined value of, first, a 28 February 2001 contract with Ngan Linh TNHH Ltd (“Ngan Linh”) for the sale of the hard and soft-board plant and, second, a 8 May 2004 contract with Best Chipboard for the particle board plant. On the back of these two purported contracts, the plaintiff is claiming loss and damage of S$1,174,999.48.

[22] In essence, the 2 defendant’s defence is that s 68(2) of the Subordinate Courts Act confers a statutory immunity upon the bailiff unless it can be shown that he had knowingly acted in excess of authority. Further, it is his position that actual, as opposed to constructive, knowledge is needed to satisfy this test to deprive him of his statutory immunity.

[23] The 1 defendant’s defence is that the bailiff is a public functionary who does not act as the agent of the execution creditor. As such, any breach on the part of the 2 defendant does not represent a breach by the 1 defendant. Further, the 1 defendant contends that it does not owe any independent duty of care to the plaintiff in respect of the acts and omissions complained of. Finally, even if such a duty is found, it is contended that the loss suffered by the plaintiff must be based on the scrap metal value of the machinery and cannot be computed at S$1,174,999.48.

[24] It is fitting to begin by determining whether the liability, if any, of the two co-defendants should be taken in tandem or if their conduct should be discretely assessed. Unfortunately, the precise nature of the relationship between an execution creditor and the bailiff is not entirely clear. The available authorities do not provide a readily unequivocal answer.

[25] The issue was considered by Judicial Commissioner Choo Han Teck (as he then was) in Heng Chyu Kee v Far East Square [2001] 3 SLR(R) 651 (“Heng Chyu Kee”), a case which concerned the liability in negligence of a landlord who took out a writ of distress. Choo JC opined at [5] that, “when the movables are being distrained, the landlord must ensure that the bailiff, who is deemed to be his agent in this regard, affixes the court’s seal on each of the movables to be distrained.” Taken on its own, it is unclear whether this agency relationship arises only specifically in relation to the act of affixing the court’s seal or if Choo JC intended this to stand for a more general agency relationship between the bailiff and the landlord in the execution of a writ of distress. It should be highlighted at the outset that the bailiff was not added as a defendant in Heng Chyu Kee. In the context of the entire decision, however, it is apparent that the court proceeded on the basis that the negligence of the landlord, who was the sole defendant, could be constituted by the acts of the bailiff. The landlord was found to be negligent for failing to: a) ensure that the value of the goods seized by the bailiff did not exceed the debt; b) identify the goods seized by affixing the court seal on them; c) give adequate notice of the sale; d) ensure that only the seized items were sold; and e) ensure that the purchaser took away only the items purchased. It appears from the decision in Heng Chyu Kee that Choo JC assumed that the bailiff acts as the agent of the judgment creditor under the distress procedure. No authorities were cited, nor was there any exposition as to the basis for this conclusion. Further, there is nothing in the decision to indicate that this proposition was even disputed by the landlord. Upon examining the pleadings in Heng Chyu Kee, I have noted that the plaintiff alleged that “the Bailiff, acting in pursuant [sic] of the authority and instruction of the Defendant as aforesaid” had seized her goods. In response, the defendant did not deny this in its defence but instead insisted that the distress had been properly executed.

[26] There is, however, clear local authority which appears to be at odds with the position adopted in Heng Chyu Kee. In Curtis v Metro-Goldwin-Meyer (Oriental) Inc [1930] SSLR 5 (“Curtis”), the Straits Settlements Supreme Court held after a survey of English authorities that:

[27] An examination of the English authorities on this subject, however, gives cause to proceed with some caution. There are cases pointing in either direction. In Re Caidan [1942] 1 Ch 90 (“Re Caidan”), Morton J adopted the following view:

[28] This is to be contrasted with the more measured approach of Walton J in Re A Debtor (No 2 of 1977) [1979] 1 WLR 956 (“Re A Debtor”), in which Lord Cranworth LC’s dicta in Hooper v Lane (1857) 6 HL Case 443 (“Hooper”) was cited:

[29] These two cases are counter-balanced by the decision of Evershed MR in Barclays Bank v Roberts [1954] 3 All ER 107 (“Barclays Bank”), applying the longstanding authority of Williams v Williams & Nathan [1937] 2 All ER 559 (“Williams”), wherein Greer LJ held at [2] that:

[30] It appears from Williams that the bailiff might be regarded as the agent of the judgment creditor in limited circumstances when the execution creditor “intervenes” to require the bailiff to do something which is not covered in the writ of execution. In Barclays Bank v Roberts, Evershed MR provided the following analysis as to what intervention is required for an agency relationship to arise:

[31] On this line of authority, a principal-agent relationship only arises if the “character and quality” of the bailiff’s conduct has been altered by the execution creditor. To establish this, the execution creditor must first assume responsibility for the bailiff’s actions and the bailiff must then act plainly on the former’s instructions. In Williams, it was held that the execution creditor must give the bailiff some “special direction”.

[32] It need only be mentioned in passing that these cases were not cited in Heng Chyu Kee. It leaves me to consider this question afresh, given that the relevant authorities have now been presented for the court’s consideration.

[33] The case which most unreservedly supports the agency proposition is Re Caidan, but the standing of this decision must now be discounted given that Morton J was content to rely heavily on what was stated in the 2 edition of Halsbury’s Laws of England, without more. The 4 edition was scrutinised in the later case of Re A Debtor and found to be inaccurate:

[34] The remaining authorities on this subject are generally agreed that the bailiff is a servant of the court and acts on behalf of the court, but they set different thresholds for situations wherein he can also be regarded as an agent of the execution creditor. The Re A Debtor and Hooper sequence of cases is vague in its analysis, going only so far as to establish that the bailiff is the execution creditor’s agent “for some purposes” and is “not simply an agent” but has “wider responsibilities”. The line of cases from Woollen v Wright and Williams through to Barclays Bank offers a more coherent position where the bailiff will only step into the role of an agent if there has been some “special direction” or “assumption of responsibility” by the execution creditor. The specific propositions which emerge from these cases are that the bailiff is not an agent where he receives payment of the judgment debt from the execution debtor (Re A Debtor), wrongly seizes the property of a non-party (Woollen v Wright), or wrongfully evicts a tenant (Williams; Barclays Bank).

[35] On the whole, the position in English law is that the bailiff, being a public functionary, is not by default an agent of the execution creditor who puts the writ of seizure and sale in his hands unless there are special instructions from the latter which are subsequently accepted by the bailiff. Apart from this, the bailiff is to have regard to the interests and instructions of the execution creditor only insofar as it is compatible with his public duty (see Re Cook (1894) 63 LJ QB 756). In this regard, Curtis remains good law and should be applied in preference over Heng Chyu Kee, wherein the court did not have the benefit of being referred to the relevant authorities. It has been suggested by counsel for both the 1 and 2 defendants, Mr Daniel Koh and Mr Chou Sean Yu respectively, that Heng Chyu Kee can be distinguished as it concerned the improper execution of a writ of distress as distinct from a WSS. In English law, the remedy of distress is a rare self-help remedy which permits the landlord to immediately seize and sell the goods of a tenant in arrears. Lord Denning described it as “an archaic remedy which has largely fallen into disuse” in Abingdon Rural District Council v O’Gorman [1968] 2 QB 811 at 819. Until this common law right was abolished by s 71 of the Tribunals, Courts and Enforcement Act 2007, the position in England was that a landlord need not seek a court order before levying distress so long as the affected tenancy was not protected by the Rent Acts. In this context, the bailiff who executes distress on behalf of the landlord can less controversially be viewed as the latter’s agent. Indeed it goes some length to explain the divergence between Re Caidan and the other cited English authorities. However, this does not afford a ready basis to distinguish Heng Chyu Kee. The operation of distress in Singapore is governed by the Distress Act (Cap 84, 1996 Rev Ed) which requires a court to issue a writ of distress before it can be levied. In Ginsin Holdings Pte Ltd v Tan Mui Khoon (trading as Chan Eng Soon Service) and another [1996] 3 SLR(R) 500, Judith Prakash J examined the operation of distress in Singapore against its historical development in England and reached the following conclusion:

[36] The processes involved in obtaining and executing a writ of distress (as in Heng Chyu Kee) are therefore broadly similar to those of a writ of execution (as in Curtis and the present case). Consistent with this understanding, O 46 r 16 of the Rules of Court governs both writ of execution and distress. Insofar as the issue is one of whether the bailiff acts as an agent of the person who took out the writ, the same considerations and principles are traversable whether it is a writ of distress or execution.

[37] In my view, the bailiff is not, by default, viewed as the agent of the execution creditor and the onus is upon the party who argues otherwise to establish either that special instructions were issued or that there had been intervention by the execution creditor, such as to render the bailiff his agent.

[38] There is no evidence that the 1 defendant had issued any special instructions to the bailiff, apart from the fact that Eugene had directed the 2 defendant to seize the machine parts at A2 and A3. Further, it cannot be said that the 2 defendant acted under the special instructions of the 1 defendant merely by accepting the letter of indemnity. While agents are typically indemnified, the converse statement – that whomsoever indemnified is typically an agent – is not necessarily true. An agent is “invested with a legal power to alter his principal’s legal relations with third persons”, but the provision of an indemnity does not, without more, also carry with it such a power. The indemnity is a standard requirement that the bailiff would require from any execution creditor and there is nothing to indicate that the 2 defendant had conducted himself any differently as a result of the specific indemnity provided by the 1 defendant. In other words, following Megarry VC in Barclays Bank, it cannot be said that the “character and quality of their actions were entirely altered” by the provision of the indemnity. Further, applying the standard set out in Curtis, the 1 defendant did not “mislead” the 2 defendant or take such “active part” in the actual execution as to identify itself with any wrongful acts of the latter.

[39] The inexorable conclusion which must be drawn is that no relationship of agency arose in the present case between the two co-defendants.

[40] The key defence of the 2 defendant rests on s 68(2) of the Subordinate Courts Act that protects him from any liability unless he knowingly acted in excess of authority. The provision is set out here in full:

[41] There are two issues which arise from s 68(2):

[42] I proceed now to consider these issues.

[43] The determination of this issue is a prerequisite to the assessment of the 2 defendant’s liability. The plaintiff’s position is that constructive knowledge, “in the sense of recklessness as in turning a blind eye to the risk of loss or damage”, would suffice to remove the bailiff’s statutory immunity. The 2 defendant contends that the test is a subjective one, such that the plaintiff must demonstrate that the 2 defendant had actual knowledge that he was acting in excess of authority. However, Mr Chou accepted that there are no reported cases on the state of knowledge required to engage the exception in s 68(2). The court must therefore apply general principles of statutory interpretation to determine whether only actual knowledge is sufficient to displace the bailiff’s statutory immunity.

[44] On the face of it, s 68(2) serves the clear purpose of protecting officers of the Subordinate Courts from facing onerous civil liabilities in performing their tasks in the execution of court processes. The subjective test would fall squarely in line with this objective. Further, this gives the wording of the statute its natural and ordinary meaning because the default position is that the officers of the Subordinate Courts, including the bailiff, are not liable for damage in the course of performing their judicial tasks. The onus is on the claimant to prove that the relevant officer had knowingly acted in excess of his authority in order to remove the statutory immunity. Mr Govin accepts that mere negligence is not sufficient to displace the statutory immunity.

[45] On the one hand, it can be said that the subjective test would be more in keeping with the statutory objective to protect officers of the Subordinate Courts in the performance of their duties. On the other hand, it can also be persuasively argued that the subjective interpretation, taken to its logical extension, will grant officers an extensive immunity which might protect even egregious instances of excess of authority against civil action. A more objective standard might perhaps signal the legislature’s intention to uphold standards of professional conduct whilst still protecting officers of the Subordinate Courts from legal harassment. However, such a purposive interpretation strains the natural meaning of “knowingly” by incepting the legal concept of constructive knowledge into the term.

[46] Adopting a subjective test does not, however, mean that the 2 defendant will only be deprived of his statutory immunity if it can be shown that he actually knew he was exceeding his authority. It is the common position in criminal law that a defendant who wilfully shuts his eyes to the commission of an offence will also satisfy the mens rea requirement of subjective knowledge. In Awtar Singh s/o Margar Singh v Public Prosecutor [2000] 2 SLR(R) 435, Yong CJ developed the following exposition of wilful blindness at [50]:

[47] The criminal law treats actual knowledge and wilful blindness as legal equivalents. However, it must be emphasised that they are not substantively the same – actual knowledge is a subjective mental state, whereas wilful blindness is an objective evidential tool for establishing such a mental state (see Public Prosecutor v Lim Boon Hiong and another [2010] 4 SLR 696 at [55]).

[48] In the civil context, the House of Lords undertook a comprehensive investigation into the meaning of acting “knowingly” in excess of authority in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1. This case is of particular relevance given that it also concerns the culpable mental state of a public officer, albeit in the context of a common law tort instead of statutory immunity. More importantly, the ingredients of the tort of misfeasance in public office are broadly similar to the requirements set out in s 68 for the displacement of the bailiff’s statutory immunity. Lord Steyn described the tort as follows, at p 191:

[49] The House of Lords concluded that “knowing” includes both situations of actual knowledge as well as subjective recklessness or reckless indifference. The plaintiff’s argument that objective recklessness, wherein the defendant recklessly failed to even think about an obvious risk, should be sufficient to attract liability was rejected. It was also thought that this represented the appropriate balance between the competing policy considerations of combating abuse of public power and preventing unmeritorious claims against public officers (per Lord Steyn at p 196).

[50] On the whole, I see no compelling reasons for extending the meaning of “knowingly” beyond the elements of actual knowledge and wilful blindness. The common thread between these elements is that the bailiff must have at least addressed his mind to whether he is exceeding his authority, as opposed to situations where the bailiff was wholly ignorant or simply failed to give the matter any thought at all. Importing notions of constructive or objective knowledge necessarily derogates from the mental cognisance which is inherently denoted by the term “knowingly”. It also detracts from the purpose of s 68 by potentially opening the door to claims against court officers for negligent performance of their duties. Any introduction of objective standards necessarily structures the administration of these public duties by increasing the vulnerability of court officers to civil litigation. As for whether the subjective standard of reckless indifference will suffice to displace the bailiff’s statutory immunity and whether it is any different from wilful blindness, I am disinclined to make a finding on this issue without the benefit of submissions from counsel and, in any event, it is unnecessary for the determination of the present case. I add only that the mens rea requirements of actual knowledge and wilful blindness, whilst stringent, would still capture instances where the bailiff acts egregiously outside of his authority.

[51] There is judicial authority that bailiffs owe a common law duty of care to the execution debtor, as distinct from their statutory obligations under O 46 of the Rules of Court. Apart from the dicta of Lord Cranworth in Hooper (see [29] above) to this effect, there is also the case of S Louis Pillay v AS Nadasan [1922] FMSLR 100 (“Pillay”). In his judgment, Woodward JC opined that:

[52] Given that the bailiff owes a common law duty of care to the execution debtor, the question arises whether s 68(2) operates to protect him from any breach of this duty. In this regard, it appears to be the general position in England and the United States that liability in tort is subject to express statutory provisions conferring immunity on a judicial officer. In Observer Ltd v Gordon [1983] 1 WLR 1008, the defendant sheriff was accused of wrongful seizure of another’s goods pursuant to a bankruptcy petition. Under s 15 of the Bankruptcy and Deeds of Arrangement Act 1913, the sheriff had a defence unless he had notice that the goods belonged to another, or if it would have been reasonable for him to make inquiries that might have ascertained that the goods were so owned. There was also a well-established common law doctrine, following Neumann v Bakeaway Ltd [1983] 1 WLR 1016, that the sheriff would be liable if the seized goods were sold at a gross undervalue. The following passage from Glidewell J’s judgment at 1016 supports the view that the statutory defence takes precedence:

[53] In addition, there are several United States cases which establish the same position in relation to the Illinois Local Governmental and Governmental Employees Tort Immunity Act (745 Ill Comp Stat 10) (“Tort Immunity Act”). Two cases will suffice to illustrate the application of this jurisprudence.

[54] Section 2-202 of the Tort Immunity Act provides that “[a] public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes wilful and wanton conduct”. The District Court in Hogan v Smith, SD Ill, 2012, 2012 WL 1435402 held that negligence of police officers in a high-speed car chase was not actionable as it did not amount to wilful and wanton conduct.

[55] Similarly, s 5/105 of the Tort Immunity Act extends immunity to any “injury caused by the negligent operation of a motor vehicle or firefighting or rescue equipment, when responding to an emergency call, including transportation of a person to a medical facility.” In Carter v Simpson, 328 F 3d 948, a police officer was driving a patrol car to respond to a call of reported death. The officer was alleged to have negligently collided with the plaintiff’s car. The United States Court of Appeals for the 7 Circuit held that the officer had “immunity for any alleged negligence on his part” (at 951) except for what was expressly provided in the statute, ie, wilful or wanton conduct.

[56] It would appear from my review of English and United States cases that the common law duty of care is expressly subject to s 68(2) of the Subordinate Courts Act, such that the bailiff’s statutory immunity must be disabled before any tortious liability can be engaged.

[57] Each allegation will be separately examined in turn. It will be apparent that the 2 defendant did not in fact act in excess of authority, let alone knowingly act in excess of such authority.

[58] The bailiff’s duties as to notification of the execution debtor are set out in O 46 r 16 of the 1997 edition of the Rules of Court:

[59] The plaintiff contends that Form 94, the Notice of Seizure and Inventory, should not have been left at the container office at the warehouse at Jalan Buroh, but should instead have been sent to the plaintiff’s office at Beach Road. However, the options under O 46 r 16 are couched in disjunctive terms. In this regard, it is plainly within the rights of the 2 defendant to either leave the Notice at, or post it to, the place where the seizure was executed. Further, the 2 defendant testified that he had every reason to believe that the Jalan Buroh address was the plaintiff’s place of business as this address was also stated in the WSS. No doubt, it would have been ideal for the Notice to have been sent to the plaintiff’s Beach Road office as well, but this is insufficient to show that the 2 defendant had knowingly acted in excess of authority. Given that the Notice was properly left at the place of seizure (which was one of the addresses stated in the WSS), there can be no question of the 2 defendant having acted in excess of authority, let alone knowingly doing so. The wording of O 46 r 16(3) is unambiguously clear – the bailiff has the choice of how and where he wishes to post the Notice – and directly disposes of the plaintiff’s claim on this point.

[60] The plaintiff has further averred, though not pleaded, that the 2 defendant failed to provide notice of the date and time of seizure, contrary to s 82 of the Subordinate Courts Practice Directions, introduced with effect from 1 August 2000 pursuant to Practice Direction 2 of 2000:

[61] The difficulty here is that Practice Directions are not binding law. In Odex Pte Ltd v Pacific Internet Pte Ltd [2008] 3 SLR(R) 18, Woo Bih Li J compiled and reiterated the relevant authorities:

[62] Whilst the 2 defendant’s omission to notify the plaintiff as to the date and time of the seizure might appear not to have been in compliance with the Practice Directions, it cannot be said that he acted in excess of his authority since the precedents are clear that he is under no binding legal duty to comply with the Practice Direction in the first place. Further, the Practice Direction is not couched in absolute terms. Prior notification may be provided to the execution debtor “as far as practicable”.

[63] In any event, the evidence suggests that whatever the omissions of the 2 defendant, Mr Zagrodnik was in fact aware of the WSS and the seizure of the plaintiff’s machinery. First, Mr Zagrodnik admitted in cross-examination that he received and understood the General Notice dated 23 March 2004. Second, in the letter from the plaintiff’s solicitors to the 1 defendant dated 9 July 2004, the purported agreement between Kelvin and Mr Zagrodnik was stated to have taken place “shortly after the seizure of the items”. Third, Mr Zagrodnik’s own affidavit, filed on 12 August 2004, states that he spoke to Kelvin after the plaintiff issued the WSS. While these factors may not be conclusive, their collective weight at least casts serious doubt on the plaintiff’s claim that it was kept wholly in the dark of the seizure until Mr Zagrodnik visited the premises on 5 July 2004.

[64] The plaintiff argues that the 2 defendant’s description of the seized machinery, “all machineries and parts of timber at lot A2 to A3 (inside)”, was remiss and short of the minimum standards imposed by O 46 r 16. Emphasis is placed on Choo JC’s dicta in Heng Chyu Kee:

[65] As was the case with the Notice of Seizure, the 2 defendant could have placed himself beyond reproach had he taken the further effort of particularizing the seized machinery in detail. Nevertheless, it has not been established that he had knowingly recorded an inaccurate description in the Inventory since the only mistake in the Inventory, ie, the inclusion of “parts of timber” was, by the 2 defendant’s own explanation, simply the product of a poor translation. If the 2 defendant had made a mistake, then it necessarily implies that he did not have actual knowledge of the error at that time. There is therefore no question of wilful blindness.

[66] More importantly, even if the 2 defendant had knowingly written an erroneous or inaccurate Inventory, the plaintiff has not shown how this has prejudiced its interests, let alone caused its loss. First, the additional inclusion of “parts of timber” does not prejudice the plaintiff’s interest unless the description of the machinery actually seized was also inaccurate. It would not be fair to reach this conclusion, since the description of “all machineries... at lot A2 and A3 (inside)” does not misrepresent the seized machinery. Indeed, the 2 defendant’s identification of the seized machinery with reference to their location appears to be on all fours with Choo JC’s dicta in Heng Chyu Kee and the English case cited therein, Davies v Property and Reversionary Investments Corp. In the latter case, Talbot J held at page 231that:

[67] It should also be borne in mind that the plaintiff had omitted to enter an inventory of the machinery stored at the two bays, such that even a more detailed description would not have permitted the plaintiff to establish in litigation whether the Inventory was accurate or otherwise.

[68] Second, the causative link between the inaccuracy in the Inventory and the plaintiff’s loss is unclear. Although the same description was used in the advertisement of the public auction, the bidders had the opportunity to physically inspect the seized machinery at the auction itself. It is highly unlikely that the description used in the advertisement of the public auction would have affected the opinion of the bidders who were actually present at the auction. Indeed, it was Mr Lim’s testimony that he had not read the advertisement and had turned up only because he noticed the crowd of people attending the auction close to his own office.

[69] On the strength of the above considerations, the plaintiff’s case on this purported breach also fails.

[70] The basis for this purported breach was that the WSS only authorised the 2 defendant to seize such of the plaintiff’s goods as would be sufficient to satisfy the judgment debt of S$29,771.57. The plaintiff claims that the 2 defendant exceeded his authority because the seized machinery is worth S$1,224,294.50. To this, there is nothing to suggest that the 2 defendant did so knowingly. The 2 defendant simply assessed the value of the seized machinery to be S$15,000. In this regard, as this was his first time seizing machinery, the 2 defendant was not personally knowledgeable of the market value of such machinery. Moreover, it is the consistent evidence of the 2 defendant, the auctioneer, Mr Lean Lam Bong (“Mr Lean”), and Mr Lim that the seized machinery was old and rusty, which further reduces the likelihood that the 2 defendant would have known of their purported value.

[71] The plaintiff contends that the 2 defendant should properly have sought an external valuation of the seized machinery in order to ensure that the seizure was not in excess of the judgment debt amounting to S$29,771.57. This is yet another instance of the recurrent theme that the 2 defendant could have gone further in the performance of his duties. However, there is simply no stipulation in the Rules of Court requiring the bailiff to obtain an external valuation. It was also the 2 defendant’s uncontroverted evidence that such valuations, as a matter of practice in the Subordinate Courts, were only sought for jewellery or diamonds.

[72] This should be sufficient to dispose of the plaintiff’s claim for excessive seizure against the 2 defendant. However for completeness, the evidence as regards the actual value of the seized machinery will be considered below at [92] to [97].

[73] Order 46 Rule 24 of the Rules of Court provides that:

[74] This present version of O 46 r 24 was introduced by Amendment Act No 671 of 2004 which came into effect on 1 December 2004. At the relevant time of seizure, the required notice period was only two days. As the advertisement was published on 9 June 2004 and the auction held on 11 June 2004, the 2 defendant had complied with his duties under the then applicable provision.

[75] The plaintiff’s main submission on this purported breach is that the advertisement failed to describe the actual function and purpose of the seized machinery and accordingly failed to attract the appropriate bidders. However, the seized machinery was auctioned, purchased, and even re-sold as scrap metal. By all accounts, even if they had been advertised as woodworking machinery, the outcome would have been no different as the machines were old and rusty. According to Mr Lean, the auction was competitive and was attended by 20 to 30 bidders. There is also no evidence that a more detailed description of the seized machinery in the advertisement would have made any difference in either attracting more specialised bidders or higher prices. In fact, the objective evidence before me indicates otherwise. The plaintiff had difficulties selling the seized machinery for years. Further, the seized machinery is still in a state of disuse today (some eight years after the auction and sale) despite the fact that it was ultimately purchased by Hua Seng, ie, a purchaser with specialised interest in the seized machinery.

[76] Most importantly, the advertisement was arranged by Mr Lean and not the 2 defendant. Mr Lean could have inspected the seized machinery himself and drawn up his own description, but he testified that this was not the general practice at that time. Although the 2 defendant had approved the draft of the advertisement, this was entirely in line with his earlier description in the Inventory. So long as the 2 defendant was under the belief that he had recorded an accurate description of the seized machinery, the case against him on this point cannot be made out. Indeed, one might surmise that the 2 defendant had every reason to ensure that the auction yielded good value since he estimated that the seized machinery was only worth about $15,000, which fell short of the judgment debt. This renders it all the more unlikely that he knowingly acted in excess of authority as regards the advertisement for the auction.

[77] Order 46 Rule 23 stipulates that:

[78] The 2 defendant left the first Notice of Sale with the security guard at the warehouse (ie, the place of the intended sale) on 24 May 2004. Subsequently, due to delays in the publication of the advertisement of the public auction, a second Notice of Sale was issued on 7 June 2004 stating that the auction would be held on 11 June 2004.

[79] The plaintiff alleges that the required seven days between the date of Notice and date of sale was not complied with. It argues that the seven day requirement is not qualified by the phrase “as far as practicable”, which only applies to the posting of the Notice at the place of execution. I disagree with the plaintiff’s interpretation of O 46 r 23. If r 23 intends for the seven day period to be an absolute requirement, then it would read “... notice in Form 91 of the day, hour and place of any intended sale must be posted 7 days before the date of sale on the notice board of the Registry and as far as practicable at the place of intended sale 7 days before the date of sale.” The requirements of both location and timing of notice should therefore be read as conjunctively qualified by the phrase “as far as practicable”.

[80] In any event, the plaintiff was not prejudiced by the four day period as it had already received notice on 24 May 2004, albeit for an earlier auction date. The plaintiff seeks to rely on a technical argument that a fresh period of seven days should be required after the issue of the second amended Notice of Sale. This might be the case if the original date (9 June 2004) of the auction had elapsed before the issuance of the second Notice of Sale. However, in the present case, the amended Notice was sent on 7 June 2004, prior to the original date of auction. As such, the second Notice, in effect, represents an extended Notice for a postponed auction rather than a fresh Notice of a new auction.

[81] This issue turns on the factual determination of whether machinery stored at bay A4 had also been sold at the public auction. It is the consistent evidence of the 2 defendant, Kelvin, Mr Yeo and Mr Lean that only goods stored at bays A2 and A3 had been seized and auctioned. Mr Zagrodnik’s unchallenged evidence is that some items originally stored at A4, namely 660 sets of idler rollers, were found in Hua Seng’s premises. However, an inventory of what was stored at bay A4 had never been kept. It is also worthwhile to note that the plaintiff’s immediate response was to instruct its solicitors to send a letter to the 1 defendant claiming wrongful re-entry into the leased premises. In this letter, the affected area was described as “the portion of the premises covering an area of three thousand eight hundred square feet at 27 Jalan Buroh, Singapore at the monthly rent of $3,120.00”, referring specifically to bays A2 and A3. The plaintiff’s response, therefore, did not seem to contemplate any wrongful seizure or sale of machinery stored at A4.

[82] This magnifies the impression that its present claim is a “res ipsa loquitur” inference based on Hua Seng’s current possession of the idler rollers. However, this fact, at best, only serves to establish that some machinery originally stored at bay A4 is currently in the possession of Hua Seng. It does not show how, when and who sold the machinery originally stored at bay A4 to Hua Seng. I should add that it is possible that the A4 machinery might have been moved to bays A2 and A3 prior to the seizure. In this regard, it is pertinent to note that Mr Zagrodnik agreed in his AEIC and in cross-examination that when he visited the premises on or about 5 July 2004, the machinery stored at bay A4 had already been removed. However, the seized machinery bought by Kim Hock at the public auction remained stored at bays A2 and A3 until it took delivery on 22 July 2004. As such, the moving of the machinery originally stored at bay A4 prior to the seizure is entirely possible. It is equally possible that the machinery stored at bay A4 might have been wrongly removed by the 1 defendant, Kim Hock, or even Hua Seng. In this regard, however, no separate claim for conversion of the machinery stored at bay A4 is before the court. The plaintiff’s entire case is premised on the auction and sale of machinery which had not been seized, yet the evidential gap as to which party had removed the machinery stored at bay A4 has not been adequately addressed. I am not convinced that the plaintiff has fulfilled its burden of proof on this count; its claim that goods stored at A4 which had not been seized were sold is therefore dismissed. For completeness, I should add that there simply cannot be any liability on the part of the 2 defendant in respect of any sale of machinery stored at bay A4, even if proved, since by the plaintiff’s own pleaded case, they were not seized by him in the first place. His Inventory clearly stated “all machineries... at lot A2 and A3 (inside)”. Further, the sale was conducted by the auctioneer, Mr Lean, and not by the 2 defendant.

[83] It only remains for me to add that the plaintiff has purported to change its pleaded position at the trial in relation to the machine parts stored at bay A4. In the plaintiff’s amended Statement of Claim, its pleaded case was that the machine parts in A4 had been sold despite not being seized. This was also the position adopted in the plaintiff’s opening statement before this court. However, the same contention has not been pursued in the plaintiff’s closing submissions, and indeed it now appears to be the plaintiff’s case that all of its machinery had been seized, including those stored in bay A4. Suffice it to say that this is not the plaintiff’s pleaded case and it appears that its pleaded position, which was in any case not proved, has been abandoned.

[84] Finally, the plaintiff asserts that the 2 defendant had failed to sell the goods for the best price. However, the WSS only directed the 2 defendant to levy such property as would satisfy the judgment debt, not to achieve the best price for the execution debtor. Further, it has not been contended that the 2 defendant had knowledge of what the best price should be. Moreover, the 2 defendant has no control over the price at which the seized machinery is eventually sold. Mr Lean testified that he was not aware of the 2 defendant’s appraisal of the machinery and, in any case, does not as a matter of practice consult the bailiff as to the price.

[85] It only remains to be added that there is no duty, even at common law, to sell seized goods for the best price. The highest at which one can place the bailiff’s duty is to obtain a reasonable price for the seized goods. This position is explained in Halsbury’s Laws of England (5th Ed) Vol 12, at paragraph 1336:

[86] The dicta of Justice Dean of the Supreme Court of Victoria, in Owen v Daly [1955] VLR 442, serves to reinforce this:

[87] Accordingly, the plaintiff’s claim on this score likewise fails.

[88] Inasmuch as the 2 defendant was not acting as the 1 defendant’s agent, any alleged misconduct which was solely the responsibility of the 2 defendant cannot be attributed in the alternative to the 1 defendant. Referring back to the particulars of the plaintiff’s claim at [20] above, the purported breaches (a), (b), (d), and (e) are all duties within the 2 defendant’s sole purview. My findings that the 2 defendant did not breach those alleged duties, would effectively dispose of the plaintiff’s case against the 1 defendant as execution creditor in relation to those alleged breaches.

[89] Further, the purported breaches in (g) and (h) relate to the sale of the seized machinery which was, in accordance with O 46 r 24, conducted by an authorised auctioneer. There is no separate pleading by the plaintiff that the 1 defendant is liable for the acts or omissions of the auctioneer.

[90] It is therefore the purported breach in (c), ie, seizure in excess of the judgment debt, which constitutes the kernel of the plaintiff’s case against the 1 defendant. The basis of this claim is that the 1 defendant had negligently directed the 2 defendant to seize the machine parts in bays A2 and A3, the value of which far exceeded the judgment debt of S$29,771.57.

[91] The plaintiff alleges that the equipment is worth S$1,224,294.50, but there are several problems with this. First, the evidence of the 2 defendant, the auctioneer, Mr Lean, and the buyer, Kim Hock, is consistent that the seized machinery looked old and rusty and was therefore treated only as scrap metal. This is approximately in line with the actual sale price of S$51,500. Second, there is no evidence that as of the date of seizure, the seized machinery allegedly comprising two separate plants was actually functional. In fact, the seized machinery, which was ultimately purchased by Mr Lau, is still in disuse today. While Mr Zagrodnik might well have told Kelvin that the machinery stored at the 1 defendant’s premises was worth “a few hundred thousand dollars”, that is not to say that Kelvin accepted it to be true or accurate or that it was in fact its value. Third, if it is true that the value of the goods seized far exceeded its sale price, it is indeed odd that Mr Zagrodnik did not offer to purchase the seized machinery from Mr Lau given that it is still in a state of disuse today. There are, therefore, compelling reasons to utilise the scrap value of the seized machinery rather than their purported contractual value in assessing whether there was excessive seizure. Nonetheless, these will be examined in turn.

[92] Liability for excessive seizure only attaches where the value of the seized goods was clearly disproportionate to the judgment debt. The English Court of Appeal in Steel Linings Ltd & Mark Harvey v Bibby & Co [1993] RA 27 (“Steel Linings”), held at p 6 that “to be proved excessive the value of the goods seized must be clearly disproportionate to the arrears and charges”. Further, “to avoid an excessive distress all that is required is that the distrainor should exercise a reasonable and honest discretion in estimating what the goods will realise at auction; he need not consider what value the ratepayer himself could have obtained for them or what they would be worth to a business successor”.

[93] Both parties in this dispute have notably called expert witnesses to provide evidence only as regards the scrap metal value of the seized machinery at the time of seizure. The 1 defendant’s expert witness, Mr Robert Khan, conducted a retrospective analysis following a visit to Hua Seng’s premises and reached the conclusion that the scrap metal value of the seized machinery as at 11 June 2004 was S$70,000, and their forced sale value S$55,000.

[94] The plaintiff’s expert, Mr Edmund Wong, produced a report on the scrap steel market value of the plaintiff’s machine parts as of May to July 2004 based on the report issued by TEX Report Ltd as well as the local purchase price obtained by Natsteel Ltd, Singapore, the dominant purchaser of such scrap in Singapore. Mr Wong’s calculations were made using the July 2004 scrap prices, following the date that the auctioned machinery was weighed. However, he conceded under cross-examination that June 2004 prices should have been used instead, as that was when the auction took place. According to his report, the international price of scrap metal as of June 2004 was S$332/ton, and the local purchase price was S$260/ton. The weigh bridge tickets indicate that approximately 318 tons of scrap metal was purchased by Kim Hock. Assuming that this was also the weight of the seized machinery in June, the value of the seized machinery would have been between S$105,576 (international) and S$82,680 (local). Taking the 2 defendant’s case at its highest, and applying a 20% discount to obtain the forced sale value, the metal would have been worth between S$84,460.80 and S$66,144. It might be thought that the upper limits of this range are on the borderline of being disproportionate to the judgment debt of S$29,771.57. Taken on average, however, it would not be fair to regard the forced sale scrap value of the seized machinery as clearly disproportionate to the judgment debt.

[95] The plaintiff’s pleaded case, however, is that the value of the seized machinery should be calculated according to its contracts with Ngan Linh and Best Chipboard. However, the contract with Ngan Linh for the hard and soft-board plant was entered into on 28 February 2001, over three years prior to the date of seizure. Further, the contract was never actually performed as Ngan Linh eventually purchased the machinery from Poland instead. Further, the contract was signed by Mr Le Tat Huan, who has since passed away, on behalf of Ngan Linh. His son, Mr Le Tat Linh, filed an AEIC to prove the Ngan Linh contract but accepted in cross-examination that the Ngan Linh contract exhibited in his AEIC was not sourced from Ngan Linh’s files but was provided by the plaintiff. He testified that the signature on the Ngan Linh contract was indeed his late father’s. Further, he accepted that the Ngan Linh contract, on its face, referred to two reference numbers, namely SEE/VN-001 and 002, of which the latter was not exhibited in his AEIC. Mr Le was not able to provide any explanation for the missing SEE/VN-002. At best, while the Ngan Linh contract may give some indication as to what a purchaser might be prepared to pay for some machinery (I say some because reference number SEE/VE-002 was not disclosed) used in the manufacture of hard and soft-boards in 2001, it does not represent the sum that a purchaser would actually be willing to pay as at 2004. The undeniable fact also remains that the Ngan Linh contract signed in 2001 was never performed.

[96] Under clause 3.1 of the Ngan Linh contract, a letter of credit for US$441,000 was to be opened within 15 days from the date of signing, but no such letter of credit has been tendered to the court as evidence. Further, the plaintiff was to begin shipment of the machines within 45 days, with final and full shipment within 60 days of the first shipment date. There is no evidence that any extension to this time-line had been granted, and no explanation as to why the necessary steps stipulated in the contract were not performed. Collectively, these factors combine to undermine the weight which can be attributed to the Ngan Linh contract as an estimate of the market value of the hard and soft-board plant.

[97] As for the purported contract with Best Chipboard for the particle board plant, numerous documentary inconsistencies were exposed during cross-examination which collectively impugn the credibility of the plaintiff’s submission on this point. Apart from certain portions of the contract being cut off in the reproduction, there was also the more serious problem that the copy of the May 2004 Best Chipboard contract carried a 2010 fax date and was exhibited in Mr Muhammad Mushtaq’s AEIC in 2011. This raises the possibility that the contract might not have been concluded in May 2004 and was only signed and faxed to the plaintiff in 2010 in contemplation of litigation. Further, it was Mr Zagrodnik’s evidence that the contract with Best Chipboard was modified from an earlier draft produced when the particle board machinery had previously been offered to Ngan Linh. In the earlier draft, the reference number “0222/2003” appears at the bottom of each page exhibited. In the Best Chipboard contract, however, this reference number appears on only the first three pages, but not on the final page with the contracting parties’ signatures. This further indicates that the contract which was exhibited in Mr Mushtaq’s AEIC might have been signed after the fact, and not in May 2004. In addition, when the Best Chipboard contract was exhibited in Mr Zagrodnik’s affidavit in aid of the plaintiff’s application to set aside the default judgment, tellingly, the final page containing both parties’ signature was also not exhibited. Neither Mr Zagrodnik nor Mr Mushtaq was able to provide any satisfactory explanation as to these irregularities when questioned in cross-examination. Mr Zagrodnik speculated that the discrepancies in the dates could be due to the wrong programming of the year on the plaintiff’s facsimile machine. No evidence was adduced to support his speculative explanation. I would not go so far as to conclude that the Best Chipboard contract was fabricated but, given the unsatisfactory inconsistencies on the face of the contract, it suffices to say that the purported contract with Best Chipboard has not been proved.

[98] It is also significant that the plaintiff’s valuation of the seized machinery has been inconsistent over the entire course of events. In the letter sent to the 1 defendant by the plaintiff’s solicitors dated 9 July 2004, the seized machinery was valued as “in excess of US$350,000.00”. By 17 April 2009, in the plaintiff’s Statement of Claim, the “[a]ctual market value of woodworking machinery and panel making equipment seized” was listed as S$1,251,200.00.

[99] It would therefore appear that the plaintiff’s case on excessive seizure is not borne out by the objective evidence before the court. Although the scrap metal value of the seized machinery may have exceeded the judgment debt, in my view, it was not so clearly disproportionate as to attract liability. As for the alleged contractual value of the seized machinery, the plaintiff’s evidence was unsatisfactory and inconclusive at best. In any event, even if Mr Zagrodnik might have managed to secure a higher price from specialty buyers, the 1 defendant, following Steel Linings, need not consider this on top of what would realistically be achievable at a public auction.

[100] The plaintiff’s case against both the 1 and 2 defendants is dismissed. In reaching this conclusion I have taken cognizance that the practice and procedure of the Subordinate Courts bailiff for WSS have since been fine-tuned. This is a step in the right direction. Each bailiff is now issued with a digital camera to be utilised at commercial properties, where forced entry is applied, and where visual aid is deemed necessary as reference. Several of the evidential difficulties in the present case could have been easily resolved had this practice been introduced earlier. The 2 defendant also testified that the bailiff may now appoint a valuer to assess seized machinery, depending on how much has been seized. Further, unlike in the present case where the auctioneer had simply taken the 2 defendant’s description for use in the public advertisement, the current practice is for the auctioneer to first inspect the seized items, and then to describe them in the advertisement for the auction. The period of time required between the advertisement and auction has also been increased from two to 14 days.