South East Enterprises v Hean Nerng: Excessive Seizure, Bailiff Liability & Execution Creditor Responsibility

South East Enterprises (Singapore) Pte Ltd (“the Appellant”) appealed against the High Court’s dismissal of its claim against Hean Nerng Holdings Pte Ltd (“the First Respondent”) and Mr Sapuan Sanadi (“the Second Respondent”), a bailiff, for losses suffered during the execution of a writ of seizure and sale. The Court of Appeal held that the Second Respondent was protected under s 68(2) of the Subordinate Courts Act but allowed the appeal against the First Respondent, finding them liable for the bailiff's excessive seizure due to their active participation in identifying the property to be seized. The court found the First Respondent liable for $96,448.12 less $19,523.45 (balance sale proceeds which was refunded to the Appellant).

1. Case Overview

1.1 Court

Court of Appeal

1.2 Outcome

Appeal allowed against the First Respondent; appeal dismissed against the Second Respondent.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Appeal regarding excessive seizure during writ execution. Court held execution creditor liable due to active participation in seizure process.

1.7 Decision Date

14 March 2013

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
SOUTH EAST ENTERPRISES (SINGAPORE) PTE LTD	Appellant	Corporation	Appeal allowed in part	Partial	Cheong Yuen Hee, Cheong Aik Chye
HEAN NERNG HOLDINGS PTE LTD	Respondent	Corporation	Appeal allowed	Lost	Daniel Koh Choon Guan, Dave Teng Dong Neng
SAPUAN SANADI	Respondent	Individual	Appeal dismissed	Won	Chou Sean Yu, Lim Shiqi, Pereira Russell Si-Hao

3. Judges

Judge Name	Title	Delivered Judgment
Sundaresh Menon	Chief Justice	No
Andrew Phang Boon Leong	Justice of the Court of Appeal	No
V K Rajah	Justice of the Court of Appeal	Yes

4. Counsels

Counsel Name	Organization
Cheong Yuen Hee	A C Cheong & Co
Cheong Aik Chye	A C Cheong & Co
Daniel Koh Choon Guan	Eldan Law LLP
Dave Teng Dong Neng	Eldan Law LLP
Chou Sean Yu	WongPartnership LLP
Lim Shiqi	WongPartnership LLP
Pereira Russell Si-Hao	WongPartnership LLP

4. Facts

First Respondent obtained judgment against the Appellant for $27,794.00 due to arrears in monthly rent.
First Respondent issued a Writ of Seizure and Sale for $29,771.57 to be executed against the Appellant’s property.
The Writ referred to both “47 Beach Road” and “27 Jalan Buroh” without specifying which was to be the place of execution.
First Respondent’s solicitors clarified that the place of execution was to be 27 Jalan Buroh.
Eugene Lim, an authorised employee of the First Respondent, met the Second Respondent and handed the Second Respondent a letter of indemnity.
Eugene Lim accompanied the Second Respondent to the warehouse and pointed out the machinery which was to be seized.
The Second Respondent valued the seized items at $15,000 and noted this in the Notice of Seizure and Inventory (Form 94).
The auction took place and the seized items were sold to Kim Hock Corporation for $51,500 as scrap metal.
Kim Hock Corporation shortly thereafter on-sold the machinery to Hua Seng Sawmill for $132,174.

5. Formal Citations

South East Enterprises (Singapore) Pte Ltd v Hean Nerng Holdings Pte Ltd and another, Civil Appeal No 74 of 2012, [2013] SGCA 25
South East Enterprises (Singapore) Pte Ltd v Hean Nerng Holdings Pte Ltd and anor, , [2012] 3 SLR 864

6. Timeline

Date	Event
2003-02-01	Appellant entered into a warehouse service agreement with the First Respondent.
2003-03-01	Appellant contracted for the rental of additional space at Bay A4 of the warehouse.
2004-02-01	Appellant fell into arrears in monthly rent.
2004-02-09	First Respondent commenced Magistrate’s Case Suit No 3070 of 2004 against the Appellant.
2004-03-05	First Respondent obtained judgment in default of appearance against the Appellant.
2004-03-19	First Respondent’s solicitors issued Writ of Seizure and Sale No 2136 of 2004.
2004-03-23	Bailiff Section’s “General Notice to Execution Debtor(s)” was sent to the Appellant.
2004-03-29	Letter from Bailiff Section to the First Respondent.
2004-04-05	First Respondent’s solicitors clarified that the place of execution was to be 27 Jalan Buroh.
2004-04-28	Original date of execution.
2004-04-29	Second letter from the Bailiff Section to the First Respondent stating that the place and the amended date of execution were, respectively, 27 Jalan Buroh and 11 May 2004.
2004-05-11	Execution of the Writ.
2004-05-26	Second Respondent appointed Kiong Chai Woon and Co Pte Ltd as the auctioneer.
2004-06-09	Advertisement in The Straits Times.
2004-06-11	Auction took place.
2012-01-01	Decision from which this appeal arose is reported at [2012] 3 SLR 864.
2013-03-15	Judgment reserved.

7. Legal Issues

Excessive Seizure
- Outcome: The court found that there was excessive seizure because the value of the seized items was clearly disproportionate to the judgment debt. The court also found that the Second Respondent did not exercise a reasonable discretion in estimating what the goods would realize at auction.
- Category: Substantive
- Sub-Issues:
  - Disproportionate value of seized goods to judgment debt
  - Failure to exercise reasonable discretion in estimating value of goods
Bailiff's Liability
- Outcome: The court held that the Second Respondent was protected under s 68(2) of the Subordinate Courts Act because he did not knowingly act in excess of his authority.
- Category: Substantive
- Sub-Issues:
  - Statutory immunity under s 68(2) of the Subordinate Courts Act
  - Common law duty of care
Execution Creditor's Liability
- Outcome: The court held that the First Respondent was liable for the bailiff's excessive seizure because its representative, Eugene Lim, took an active part in the actual execution by identifying the items to be seized and signing off on the inventory.
- Category: Substantive
- Sub-Issues:
  - Agency relationship between execution creditor and bailiff
  - Active participation in the execution process

8. Remedies Sought

Monetary Damages

9. Cause of Actions

Wrongful Execution
Excessive Seizure

10. Practice Areas

Commercial Litigation

11. Industries

Logistics
Legal Services

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Wilson v South Kesteven District Council	English Court of Appeal	Yes	[2001] 1 WLR 387	England and Wales	Cited to highlight the need for clarity in the law regarding the seizure and sale of a debtor’s goods.
Gawler v Chaplin and ors	Unknown	Yes	(1848) 154 ER 590	England and Wales	Cited for the principle that a bailiff has a duty to seize only such quantity of goods as would be reasonably sufficient to pay the amount.
Watson v Murray & Co	Queen's Bench	Yes	[1955] 2 QB 1	England and Wales	Cited for the principle that a bailiff has a duty to seize only such quantity of goods as would be reasonably sufficient to pay the amount.
Moore v Lambeth County Court Registrar and Others (No 2)	Queen's Bench	Yes	[1970] 1 QB 560	England and Wales	Cited for the principle that a bailiff has a duty to seize only such quantity of goods as would be reasonably sufficient to pay the amount.
Steel Linings Limited and anor v Bibby & Co	English Court of Appeal	Yes	[1993] RA 27	England and Wales	Cited for the principle that to be proved excessive the value of the goods seized must be clearly disproportionate to the arrears and charges, taking into consideration the conditions under which a forced sale of the effects must take place.
Field v Mitchell	Unknown	Yes	[1806] 6 Esp 71	England and Wales	Cited for the principle that there is a distinction between cases where there is only one thing that can be distrained and where there are many.
Baker v Wicks	King's Bench	Yes	[1904] 1 KB 743	England and Wales	Cited as an example of excessive seizure where £100 of goods were seized for a debt of less than £1.
Curtis v Metro-Goldwyn-Meyer (Oriental) Inc	Straits Settlements Supreme Court	Yes	[1931] SSLR 42	Singapore	Cited for the principle that a bailiff is not typically the agent of the execution creditor.
Hooper v Lane	House of Lords	Yes	[1857] 6 HLC 442	England and Wales	Cited for the principle that a bailiff is a public functionary with responsibilities to those who set him in motion as well as those against whom the writs are directed.
In re A Debtor (No 2 of 1977)	Unknown	Yes	[1979] 1 WLR 956	England and Wales	Cited for the principle that a bailiff is a public functionary with responsibilities to those who set him in motion as well as those against whom the writs are directed.
Williams v Williams & Nathan	Unknown	Yes	[1937] 2 All ER 559	England and Wales	Cited for the principle that a bailiff executing a judgment of the court acted on behalf of the court as an officer of the court, and not as agent of the judgment creditor.
Wilson v Tumman	Unknown	Yes	(1843) 6 Man & G 236	England and Wales	Cited for the principle that a bailiff executing a judgment of the court acted on behalf of the court as an officer of the court, and not as agent of the judgment creditor.
In re Crook	Queen's Bench	Yes	(1894) 63 LJ QB 756	England and Wales	Cited for the principle that the bailiff need only have regard to the execution creditor’s instructions “so far as they are reasonable”.
Baylis v Bishop of London	Chancery Division	Yes	[1913] 1 Ch 127	England and Wales	Cited for the principle that goods seized by the bailiff are held in custody of the law, and not in the execution creditor’s possession.
Barclays Bank Ltd v Roberts	Unknown	Yes	[1954] 3 All ER 107	England and Wales	Cited for the principle that an agency relationship can arise where the execution creditor intervenes to make the bailiff do something which is not legitimately covered by the writ.
Morris v Salberg	Queen's Bench	Yes	(1889) LR QB 614	England and Wales	Cited for the principle that a person is liable for torts committed by another which he specifically instigates or authorises.
Woollen v Wright	Unknown	Yes	(1862) 1 H & C 555	England and Wales	Cited for the principle that a person is liable for torts committed by another which he specifically instigates or authorises.
Smith v Keal	Queen's Bench Division	Yes	(1882) 9 QBD 340	England and Wales	Cited for the principle that if the judgment creditor’s solicitor interferes and directs the sheriff to levy on the goods of another person, he is answerable on the same principle as any one else who directs a trespass.
Owen v Daly	Supreme Court of Victoria	Yes	[1955] VLR 442	Australia	Cited for the principle that the bailiff is an officer of the court who is duty bound to act reasonably with due regard to the interests of both the judgment creditor and judgment debtor.
Kousal Suncorp-Metway Limited	Supreme Court of Victoria	Yes	[2011] VSC 312	Australia	Cited for the principle that the bailiff is an officer of the court who is duty bound to act reasonably with due regard to the interests of both the judgment creditor and judgment debtor.
Zhipping Zhou v Ronald Geoffrey Kousal and ors	Supreme Court of Victoria	Yes	[2012] VSC 187	Australia	Cited for the principle that the bailiff is an officer of the court who is duty bound to act reasonably with due regard to the interests of both the judgment creditor and judgment debtor.
Sparrow v Cornell	Supreme Court of Western Australia	Yes	(1900) 2 WALR 78	Australia	Cited for the principle that a direction by the solicitor on the writ may involve the liability of his client.
In re Caidan	Chancery Division	Yes	[1942] 1 Ch 90	England and Wales	Discussed as a case that contradicts the position that a bailiff is generally not an agent of the execution creditor, but distinguished because it was decided in the context of levying distress, which was a self-help remedy in England.
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	Cited to explain that distress in Singapore is obtained only after judicial intervention.
Heng Chyu Kee v Far East Square Pte Ltd	High Court	Yes	[2001] 3 SLR(R) 651	Singapore	Discussed as a case that contradicts the position that a bailiff is generally not an agent of the execution creditor, but distinguished because the observation was strictly obiter.
Meredith v Flaxman	Unknown	Yes	(1831) 5 Car & P 99	England and Wales	Cited for the principle that where the execution creditor is present in a supervisory capacity and fails to intervene to correct any error in the goods seized, the creditor will be liable.
Chedin Mohamed Hashim v Teoh Ong Thor and Chew Chan Seng	Unknown	Yes	[1950] 16 MLJ 238	Malaysia	Cited for the principle that where the execution creditor directs the bailiff to seize items of another person other than the debtor, the execution creditor is liable.
Lee v Rumilly	Unknown	Yes	(1891) 7 TLR 303	England and Wales	Cited for the principle that as long as misleading instructions, which in fact misled, were given, it did not matter that the execution creditor did not mean to mislead the bailiff.
Hewitt v Spiers and Pond (Limited)	Unknown	Yes	[1896] 13 TLR 64	England and Wales	Cited for the principle that no liability was attached to the execution creditor because the bailiff in that case had not in fact been misled.
Au Tak Chen v Li Hon Ming	Hong Kong District Court	Yes	[1960] HKDCLR 247	Hong Kong	Cited to explain that distress in Singapore is obtained only after judicial intervention.
Anowar Hussain v Ajoy Kumar Mukherjee and others	Supreme Court of India	Yes	AIR 1965 SC 1651	India	Cited to affirm that “jurisdiction” in the Indian Act encompassed the erroneous exercise of jurisdiction, although this was not explicitly set out in the Indian Act.
Rachapudi Subba Rao v Advocate-General, AP	Supreme Court of India	Yes	(1981) 2 SCR 320	India	Cited to affirm that “jurisdiction” in the Indian Act encompassed the erroneous exercise of jurisdiction, although this was not explicitly set out in the Indian Act.
Roden v Eyton	Common Pleas	Yes	(1848) 6 CB 427	England and Wales	Cited for the principle that there is a distinction between cases where there is only one thing that can be distrained and where there are many.
Avenell v Croker and another	Unknown	Yes	(1828) Mood & M 172	England and Wales	Cited for the principle that there is a distinction between cases where there is only one thing that can be distrained and where there are many.
Cook v Palmer	King's Bench	Yes	108 ER 623 (KB)	England and Wales	Cited for the principle that excessive seizure is but one example of an unauthorised execution in excess of authority.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Subordinate Courts Act	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Writ of Seizure and Sale
Execution Debtor
Execution Creditor
Bailiff
Excessive Seizure
Indemnity
Inventory
Auction
Agency
Statutory Immunity

15.2 Keywords

seizure
bailiff
execution
writ
agency
liability
negligence
Singapore
Subordinate Courts Act

16. Subjects

Civil Procedure
Execution
Agency
Torts

17. Areas of Law

Civil Procedure
Execution of Judgments
Agency Law
Tort Law