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Re Sogo Department Stores (S) Pte Ltd (under judicial management) [2001] 2 SLR 556
High Court - Originating Petition No 14 of 2000
Judith Prakash J
10 January, 9 April 2001
Agency agreement - Interpretation - Whether moneys owing to principal held on trust by agent - Whether circumstances gave rise to trust relationship - Intention of parties and arrangements made with regard to moneys so received
Chan Hian Young and Adrian Wong (Allen & Gledhill) for Hinckley
Singapore Trading Pte Ltd.
Lee Eng Beng and Melissa Lee (Rajah & Tann) for the judicial managers.
This was an application by Hinckley Singapore Trading Pte Ltd ('Hinckley') for leave from the court under s 227C(c) or s 227D(4)(c) of the Companies Act (Cap 50, 1994 Ed) ('the Act') to determine the issue of whether the moneys collected by Sogo Department Stores (S) Pte Ltd ('Sogo'), on behalf of Hinckley, pursuant to the concessionaire agreement dated 1 June 1990 between Sogo and Hinckley, were held on trust by Sogo for Hinckley. In June 1990, Sogo agreed to grant Hinckley, a company which dealt in the import and sale of Polo Ralph Lauren goods ('the goods'), a concession to carry on the retail sale of these goods in the department store.
In respect of goods sold by Hinckley, the written agreement between the parties was that the customers would pay the purchase price directly to Sogo's cashiers stationed within the department store. The agreement also provided that Hinckley would pay Sogo as commission a sum equivalent to 20% of the total net monthly sales of Hinckley's goods. The monthly commission was to be deducted by Sogo from the moneys which it collected on behalf of Hinckley in respect of the sale of Hinckley's goods. The balance was to be paid over to Hinckley within 15 days of the end of each calendar month.
At the time Sogo was placed under judicial management, the total amount payable to Hinckley was $212,212.99. Hinckley argued that leave to commence proceedings ought to be granted on the basis that the sum claimed was trust money held by Sogo as a fiduciary for Hinckley. Sogo contended that the relationship was one of creditor and debtor and the fact that it was an agent for Hinckley did not make the sums collected trust moneys.
Held, dismissing the application:
In order to obtain leave to commence proceedings against a company which was in
judicial management, the applicant had to show that the application disclosed a
seriously arguable case against the company in judicial management; Re
Atlantic Computer Systems plc (No 1) [1991] BCLC 606 followed.
It was important for Hinckley to be able to establish that it had a proprietary right to the moneys it claimed and that it was not merely a creditor of Sogo; Re Atlantic Computer Systems plc (No 1) [1991] BCLC 606 followed.
It was clear from the authorities that a trust situation in respect of moneys did not arise simply because an agency and principal relationship existed. In order to import a trust in respect of moneys collected by an agent for a principal, the intention of the parties and the arrangements they had made with regard to the moneys so received had to be carefully analyzed; Re Fleet Disposal Services Ltd [1995] 1 BCLC 345, Henry v Hammond [1913] 2 KB 515 and Nesty Oy v Lloyd's Bank plc [1983] 2 Lloyd's Rep 658 followed.
In the present case, no particular cashier was designated to receive the moneys payable for Hinckley's goods. There was nothing in the agreement requiring Sogo to deposit the moneys so received in any particular account or to keep them apart from its own moneys. There was also no requirement that the money to be paid over to Hinckley should be by separate cheque for each transaction. Sogo was allowed a commission which was 'equivalent' to 20% of the sales and it was not to take that 20% immediately out of the funds received. The accounting between Sogo and Hinckley did not take place soon after each transaction. Instead it took place 15 days after the end of each calendar month. The sales proceeds would remain with Sogo, intermixed with its own funds.
The circumstances of these transactions also militated against the existence of a trust relationship. It would not have been convenient from Sogo's point of view to create a trust relationship between itself and each concessionaire whom it allowed to carry on business in its store since this would have imposed a duty on Sogo to separate the payments received on behalf of such concessionaires from the payments it received for direct sales. This would have meant establishing a separate cashier for each concessionaire. Having regard to the circumstances and the agreement as a whole, it appeared that it was not Sogo's intention to create such a trust relationship. If Hinckley had that intention, it certainly did not appear on the face of the document.
COMPANIES AND
CORPORATIONS
Re Sogo Department Stores (S) Pte Ltd (under judicial management) [2001] 2 SLR 556
High Court - Originating Petition No 14 of 2000
Judith Prakash J
10 January, 9 April 2001
Judicial management - Leave to commence proceedings against company in judicial management - Whether applicant able to establish proprietary right to moneys claimed
See AGENCY.
Official Assignee of the estate of Tang Hsiu Lan, a bankrupt v Pua Ai Seok
& Ors
[2001] 2 SLR 436
Court of Appeal - Civil Appeal No 72 of 2000
Yong Pung How CJ, LP Thean JA and Tan Lee Meng J
19 January, 9 April 2001
Estoppel - Issue estoppel - Whether rule of issue estoppel applicable - Whether there had been determination of same issue in previous hearing at which all parties in present action were represented
James Ponniah (instructed) and Tan Lu Seng (Tan Lu Seng & Co) for the
appellant.
Tan Soo Kiang and Simon Jones (Wee Swee Teow & Co) for the first, second and
third respondents.
Anamah Tan and Sarjeet Singh (Ann Tan & Associates) for the fourth
respondent.
The first respondent is the mother of the second, third and fourth respondents. The second, third and fourth respondents are brothers. The fourth respondent is Tang's former husband.
In 1987, the first respondent and her husband purchased a Margoliouth Road property, and registered it in the names of themselves and their three sons, as joint tenants. Tang lived there with the fourth respondent, his parents and his two brothers. The property became Tang's matrimonial home.
In 1992, the fourth respondent transferred his one-fifth share in the property to the first, second and third respondents as joint tenants, without any consideration.
In 1996, Tang and the fourth respondent were divorced. Justice Sinnathuray, in dealing with the division of matrimonial property, divided the property on the basis that the fourth respondent still had a 20% share in the Margoliouth property, and made an order that Tang be given 40% of the one-fifth share of the fourth respondent in the Margoliouth property, that is, the sum of $760,000 and to make payment to Tang by 1 May 1997.
The fourth respondent failed to pay Tang the amount due to her. Tang subsequently obtained a writ of seizure and sale of one-fifth of the Margoliouth property. In May 1999, Tang filed a summons-in-chambers to enforce the writ of seizure and sale. On 1 June 1999, the first, second and third respondents filed an originating summons, seeking a declaration that Tang had no claim or interest in the Margoliouth property. Justice Chao Hick Tin heard both the originating summons and summons-in-chambers, and ruled that Tang had no claim or interest in the Margoliouth property. Tang did not appeal against Justice Chao's order. Instead, in March 2000, Tang filed an originating summons, the subject of the present appeal. Tang sought a declaration to the effect that the first, second and third respondents, as registered proprietors of the Margoliouth property, are constructive trustees accountable to her for 40% of one-fifth share in the Margoliouth property.
On the hearing of the originating summons, the High Court agreed that a resulting trust had been created in favour of the fourth respondent. However, Tang's application was dismissed on the ground that the same issues had arisen, or arguably might have arisen, in the earlier proceedings before Justice Chao.
The appellant, as the official assignee of the estate of Tang, claimed that Tang had a share in the Margoliouth property. The appellant sought an order that the property be sold in the open market and that Tang be paid the amount due to her after the sale of the property.
Held, dismissing the appeal:
Issue estoppel may arise where a particular issue forming a necessary ingredient
in a cause of action has been litigated and decided and in subsequent
proceedings between the same parties involving a different cause of action, to
which the same issue is relevant, one of the parties seeks to re-open the issue;
Arnold v National Westminster Bank plc [1991] 2 AC 93; [1991] 3 All ER 41
followed.
For the purpose of applying the rule of issue estoppel, three conditions must be satisfied. Firstly, the judgment in the earlier action relied on as creating an estoppel must be: (a) of a court of competent jurisdiction; (b) final and conclusive; and (c) on the merits. Secondly, the parties in the earlier action and those in the later action must be the same. Thirdly, the issue in the later action must be the same issue as that decided by the judgment in the earlier action; The Sennar [1985] 2 All ER 104; [1985] 1 Lloyd's Rep 521 followed.
The three requirements of issue estoppel were clearly fulfilled in the present case. The issue of trust in the fourth respondent's share of the Margoliouth property has been argued before.
Pai Lily v Yeo Peng Hock Henry [2001] 2 SLR 569
High Court - Suit No 600030 of 2000
Lee Seiu Kin JC
18-22 September, 28 November-1 December 2000, 9 January, 26 March 2001
Negligence - Medical negligence claim for loss of plaintiff's eye - Whether claim time barred - Limitation Act (Cap 163, 1996 Ed) s 24A
Edmund Kronenburg and Kalyani Rajendran (Drew & Napier) for the
plaintiff.
David Wee and Maurice Cheong (Donaldson & Burkinshaw) for the defendant.
The plaintiff had been the defendant's patient since February 1992. On the afternoon of 18 December 1996, the plaintiff consulted the defendant, a general practitioner, at his clinic as she was running a fever and felt aches and pain in her bones and all over her body. The defendant prescribed the following medication: Transgesic for fever, Ponstan for body pain/backache, Dramamine for giddiness and Decodine for running nose. The plaintiff went home, took the medicines and rested for the remainder of the day. The next day, however, in addition to the continuing symptoms of aches and fever, she had nausea. The defendant prescribed further medication to supplement the earlier prescription: Apo-Naproxen for body pain/backache, Merlislon and Phenexcept CD for giddiness. However, the medication did not help and the plaintiff began shivering.
After obtaining a second opinion, with no improvement in her condition, the plaintiff went back to see the defendant on 23 December 1996. This time, the defendant said that he had advised her to go to the Accident and Emergency ('A&E') department immediately as he suspected that she had a detached retina. The plaintiff, however, denied that this had taken place and alleged that the defendant did not advise her that her eye condition was serious or that she had to go immediately to the A&E unit of a hospital to seek treatment. The plaintiff also said that the defendant did not tell her that he suspected she had a detached retina.
It turned out that the plaintiff had a rare bacterial infection which caused her to lose her left eye. The plaintiff claimed that the defendant had, in respect of those consultations, failed to exercise due care and skill as a medical practitioner in breach of his contractual duties, alternatively, that he had negligently treated and advised her, and that such breaches had caused her loss.
Held, allowing the claim:
Based on the expert evidence, the plaintiff's symptoms did not warrant the
defendant testing her for urinary tract infection. The defendant was thus held
not to be negligent for omitting to conduct this test.
It was held that the defendant did not stress the urgency of having to seek treatment for the suspected detached retina at the A&E department to the plaintiff and was negligent for not doing so. In any case, his suspicion turned out to be wrong. However, since he suspected something serious was ailing the plaintiff, he should have advised her to seek treatment at the A&E department, where the true medical condition, ie the bacterial infection, would have been diagnosed.
Had the defendant tested the plaintiff for urinary tract infection on 19 December, he would have prescribed Apo-Sulfatrim and she would have taken it and this would not have resulted in her eye infection and the subsequent loss of her left eye.
With regard to limitation, 'knowledge' for the purpose of s 24A of the Limitation Act (Cap 163, 1996 Ed) had to be actual or constructive. In the circumstances of this case, constructive knowledge could not have attached to the plaintiff without expert assistance. As such, the plaintiff could not have obtained this before she was discharged from the Singapore General Hospital on 26 January 1997, and at the very least, she was entitled to a reasonable period after that date to obtain such expert advice. Hence, the plaintiff's claim was made within the three-year limitation period.
The defendant was in breach of his contractual duty to the plaintiff. Alternatively, he was negligent in failing to advise her on 23 December 1996 to go immediately to the hospital. If he had so advised her, she would have gone, in which case, on a balance of probability, her eye would have been saved. The defendant was thus liable to the plaintiff in respect of the loss of her left eye.
[Editorial Note: The defendant has appealed to the Court of Appeal vide CA 600048/2001.]
Pai Lily v Yeo Peng Hock Henry [2001] 2 SLR 569
High Court - Suit No 600030 of 2000
Lee Seiu Kin JC
18-22 September, 28 November-1 December 2000, 9 January, 26 March 2001
Negligence - Medical negligence - Whether defendant doctor negligent in failing to conduct test for urinary tract infection on plaintiff on her second visit - Whether conducting test would have resulted in plaintiff not suffering eye infection and subsequent loss of her eye
Negligence - Medical negligence - Whether defendant doctor negligent in failing to stress urgency of seeking treatment at hospital's Accident and Emergency department to plaintiff - Whether plaintiff's eye could have been saved if defendant had so advised her
Negligence - Medical negligence - Causation - Whether defendant doctor's negligence caused damage suffered by plaintiff
See LIMITATION.