South East Enterprises v Hean Nerng: Duties Under Writ of Seizure and Sale
In South East Enterprises (Singapore) Pte Ltd v Hean Nerng Holdings Pte Ltd and another, the High Court of Singapore addressed the duties owed by an execution creditor and a court bailiff to an execution debtor under a writ of seizure and sale. South East Enterprises sued Hean Nerng Holdings and a court bailiff, alleging negligence and breach of statutory duty in the execution of a writ of seizure and sale obtained by Hean Nerng due to unpaid rent. The court dismissed the plaintiff's case, finding no agency relationship between the execution creditor and the bailiff, and that the bailiff did not knowingly act in excess of his authority. The court ordered the plaintiff to bear the costs of the first and second defendants.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Plaintiff’s case against both the first and second defendants is dismissed.
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
High Court case concerning duties owed by execution creditor and court bailiff to execution debtor under a writ of seizure and sale.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| South East Enterprises (Singapore) Pte Ltd | Plaintiff | Corporation | Claim Dismissed | Lost | R Govintharasah, Noh Hamid |
| Hean Nerng Holdings Pte Ltd | Defendant | Corporation | Judgment for Defendant | Won | Daniel Koh, Lee Wei Yung |
| Sapuan Sanadi | Defendant | Individual | Judgment for Defendant | Won | Chou Sean Yu, Loo Ee Lin |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Steven Chong | Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| R Govintharasah | Gurbani & Co |
| Noh Hamid | Gurbani & Co |
| Daniel Koh | Eldan Law LLP |
| Lee Wei Yung | Eldan Law LLP |
| Chou Sean Yu | Wong Partnership LLP |
| Loo Ee Lin | Wong Partnership LLP |
4. Facts
- Plaintiff leased warehouse space from the first defendant and fell into arrears in rent.
- Default judgment was entered against the plaintiff, and the first defendant obtained a writ of seizure and sale.
- The second defendant, a court bailiff, executed the writ of seizure and sale at the warehouse.
- The plaintiff claimed that machinery in a third bay was auctioned off, though not seized.
- The seized machine parts were sold at auction to Kim Hock Corporation Pte Ltd.
- Kim Hock on-sold the machine parts to Hua Seng Sawmill Sdn Bhd in Sarawak.
- The plaintiff claimed the value of the seized machinery was significantly higher than the judgment debt.
5. Formal Citations
- South East Enterprises (Singapore) Pte Ltd v Hean Nerng Holdings Pte Ltd and another, Suit No 334 of 2009, [2012] SGHC 119
6. Timeline
| Date | Event |
|---|---|
| Plaintiff entered into a Warehouse Service Agreement with the first defendant. | |
| Second agreement entered into for the use of bay A4. | |
| The first defendant brought an MC Suit against the plaintiff. | |
| Default judgment was entered. | |
| The first defendant filed the Praecipe for Writ of Seizure and Sale. | |
| The bailiff’s office sent a General Notice to the plaintiff’s office. | |
| The bailiff’s office informed the first defendant in writing to accompany the bailiff to the place of execution. | |
| The Writ of Seizure and Sale was executed. | |
| The first Notice of Sale was issued. | |
| Kiong Chai Woon and Company Pte Ltd was appointed as the auctioneer. | |
| A new Notice of Sale was issued. | |
| The auction was held at the warehouse. | |
| Mr. Zagrodnik visited the warehouse with a Pakistani business associate to inspect the machine parts. | |
| The plaintiff’s solicitors wrote to the first defendant claiming that the first defendant’s re-entry into the leased premises was wrongful. | |
| Mr. Zagrodnik made a police report against the first defendant. | |
| Kim Hock arranged for the machine parts to be transferred to its premises. | |
| The High Court affirmed the dismissal of the plaintiff's application to set aside the Default Judgment and the Writ of Seizure and Sale. | |
| The plaintiff commenced the present suit against the first defendant and the “Bailiff, Subordinate Courts of Singapore”. | |
| The High Court upheld the decision to strike out the claim against the Attorney-General. | |
| Judgment reserved. |
7. Legal Issues
- Breach of Statutory Duty
- Outcome: The court found that the bailiff did not breach his statutory duty.
- Category: Substantive
- Negligence
- Outcome: The court found that the defendants were not negligent.
- Category: Substantive
- Agency
- Outcome: The court found that no agency relationship existed between the execution creditor and the bailiff.
- Category: Substantive
- Statutory Immunity
- Outcome: The court found that the bailiff was protected by statutory immunity as he did not knowingly act in excess of his authority.
- Category: Substantive
- Excessive Seizure
- Outcome: The court found that the seizure was not so clearly disproportionate to the judgment debt as to attract liability.
- Category: Substantive
8. Remedies Sought
- Monetary Damages
9. Cause of Actions
- Negligence
- Breach of Statutory Duty
10. Practice Areas
- Commercial Litigation
11. Industries
- Logistics
- Warehousing
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Heng Chyu Kee v Far East Square | High Court | Yes | [2001] 3 SLR(R) 651 | Singapore | Discusses the liability in negligence of a landlord who took out a writ of distress and whether the bailiff is deemed to be the landlord's agent. |
| Curtis v Metro-Goldwin-Meyer (Oriental) Inc | Straits Settlements Supreme Court | Yes | [1930] SSLR 5 | Singapore | Held that when the sheriff acts under a valid writ of execution, his acts are the acts of the Court, and he is not the servant or agent of the execution-creditor unless the execution-creditor misleads the sheriff. |
| Re Caidan | Chancery Division | Yes | [1942] 1 Ch 90 | England and Wales | States that the bailiff distrains merely in the capacity of an agent for the person levying the distress. |
| Hooper v Lane | House of Lords | Yes | (1857) 6 HL Case 443 | United Kingdom | Cited for the principle that a sheriff is not simply an agent for the judgment creditor but has wider responsibilities. |
| Re A Debtor (No 2 of 1977) | High Court of Justice | Yes | [1979] 1 WLR 956 | England and Wales | Discusses the role of the sheriff and whether the sheriff is the agent of the creditor to accept payments made to him. |
| Barclays Bank v Roberts | Court of Appeal | Yes | [1954] 3 All ER 107 | England and Wales | Applies the authority of Williams v Williams & Nathan, stating that a sheriff and a sheriff’s officer are acting on behalf of the court, not as a servant or agent of the plaintiff. |
| Williams v Williams & Nathan | Court of Appeal | Yes | [1937] 2 All ER 559 | England and Wales | Held that a sheriff and a sheriff’s officer, executing a judgment of the court, are acting on behalf of the court and are not a servant or agent of the plaintiff who has recovered judgment in the action. |
| Woollen v Wright | Court of Exchequer | Yes | (1862) 1 H&C 554 | England and Wales | Cited as authority that a sheriff and a sheriff’s officer, executing a judgment of the court, are acting on behalf of the court, and is not a servant or agent of the plaintiff who has recovered judgment in the action. |
| Re Cook | Queen's Bench Division | Yes | (1894) 63 LJ QB 756 | England and Wales | States that 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. |
| Abingdon Rural District Council v O’Gorman | Court of Appeal | Yes | [1968] 2 QB 811 | England and Wales | Lord Denning described distress as “an archaic remedy which has largely fallen into disuse”. |
| Ginsin Holdings Pte Ltd v Tan Mui Khoon (trading as Chan Eng Soon Service) and another | High Court | Yes | [1996] 3 SLR(R) 500 | Singapore | Examined the operation of distress in Singapore against its historical development in England and reached the conclusion that distress is a remedy which is obtained only after judicial intervention. |
| Davies v Property and Reversionary Investments Corp | King's Bench Division | Yes | [1929] 2 KB 222 | England and Wales | States that if the notice of writ identifies all items in the shop as subject to the seizure the notice may be regarded as sufficient. |
| Odex Pte Ltd v Pacific Internet Pte Ltd | High Court | Yes | [2008] 3 SLR(R) 18 | Singapore | Reiterated that a practice direction does not have the force of law. |
| Awtar Singh s/o Margar Singh v Public Prosecutor | High Court | Yes | [2000] 2 SLR(R) 435 | Singapore | Developed an exposition of wilful blindness. |
| Public Prosecutor v Lim Boon Hiong and another | High Court | Yes | [2010] 4 SLR 696 | Singapore | States that actual knowledge is a subjective mental state, whereas wilful blindness is an objective evidential tool for establishing such a mental state. |
| Three Rivers DC v Bank of England (No 3) | House of Lords | Yes | [2003] 2 AC 1 | United Kingdom | Undertook a comprehensive investigation into the meaning of acting “knowingly” in excess of authority. |
| S Louis Pillay v AS Nadasan | Federated Malay States Law Reports | Yes | [1922] FMSLR 100 | Malaysia | States that bailiffs owe a common law duty of care to the execution debtor. |
| Observer Ltd v Gordon | High Court of Justice | Yes | [1983] 1 WLR 1008 | England and Wales | The defendant sheriff was accused of wrongful seizure of another’s goods pursuant to a bankruptcy petition. |
| Neumann v Bakeaway Ltd | High Court of Justice | Yes | [1983] 1 WLR 1016 | England and Wales | States that the sheriff would be liable if the seized goods were sold at a gross undervalue. |
| Steel Linings Ltd & Mark Harvey v Bibby & Co | Court of Appeal | Yes | [1993] RA 27 | England and Wales | Held that to be proved excessive the value of the goods seized must be clearly disproportionate to the arrears and charges. |
| Owen v Daly | Supreme Court of Victoria | Yes | [1955] VLR 442 | Australia | States that at common law the duty of the sheriff in selling chattels of a judgment debtor is to act reasonably in the interests of the judgment creditor and the judgment debtor in order to obtain a fair price. |
| DB Trustees (Hong Kong) Ltd v Consult Asia Pte ltd and another appeal | High Court | Yes | [2010] 3 SLR 542 | Singapore | Discusses the overarching rule with regard to ordering costs against a non-party in court proceedings is that it must, in the circumstances of the case, be just to do so. |
13. Applicable Rules
| Rule Name |
|---|
| Rules of Court O 46 r 16 |
| Rules of Court O 46 r 23 |
| Rules of Court O 46 r 24 |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Supreme Court of Judicature Act (Chapter 322, Section 80) Rules of Court | Singapore |
| Subordinate Courts Act | Singapore |
| Government Proceedings Act (Cap 121) | Singapore |
| Distress Act (Cap 84, 1996 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Writ of Seizure and Sale
- Execution Creditor
- Execution Debtor
- Bailiff
- Agency
- Statutory Immunity
- Excessive Seizure
- Default Judgment
- Auction
- Inventory
- Machine Parts
15.2 Keywords
- Writ of Seizure and Sale
- Bailiff
- Negligence
- Agency
- Execution
16. Subjects
- Civil Procedure
- Agency
- Execution of Judgments
- Torts
17. Areas of Law
- Civil Procedure
- Agency Law
- Statutory Interpretation
- Tort Law
- Contract Law
- Execution of Judgments