1 Cur Adv Vult

2 There is a duty upon an applicant for an ex parte injunction to make full and fair disclosure of all facts, not only those in his favour but also those in favour of the adversary that could have a bearing on his application. There is a long line of authority asserting this proposition as well as the proposition that failure to do so can preclude a court dealing with the application on its merits or lack of them.

3 In Castelli v Cook (1849) 7 Hare 89 at p 94, Sir James Wigram, Vice Chancellor, said:

4 The applicant`s failure to ascertain all material facts, and the real (or pretended) ignorance of the importance of any such fact is no excuse for failure to bring them to the judge`s notice on the ex parte application.

5 Lord Langdale made this clear in Dalglish v Jarvie (1850) 42 ER 89 at p 241. He said that it was:

6 These words were approved by the English Court of Appeal in the case of R v Kensington Income Tax Commissioners [1917] 1 KB 486 by Cozens-Hardy MR at p 504 and Scrutton LJ at p 514. Cozens-Hardy MR also cited with approval the passage, abovementioned, from Castelli v Cook .

7 Even before R v Kensington Income Tax Commissioners [1917] 1 KB 486 in analysing the English authorities prior to 1912, Isaacs J (as he then was) of the Australian High Court said in Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at p 682:

8 `The principle (of full and fair disclosure) is not limited to cases where there is a deliberate intention to mislead but extends to cases where material facts have not been disclosed even innocently,` said Browne-Wilkinson J (as he then was) in Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289 at p 295.

9 A practice direction of the Queen`s Bench Divisional Court on procedure in ex parte applications to a judge in chambers was made on 30 March 1983. It was an inevitable consequence of cases, some of which are referred to above. English practice directions do not establish anything necessarily binding or mandatory for Singapore. However, practice directions can deal purely with administrative matters and `logistics` (eg lodge documents by 3pm) or with matters almost of substantive law or of practice or procedure. When practitioners in England carry out what is required by the latter type of practice direction, the practice and procedure adopted by them leads to judgments which can be persuasive, highly persuasive or even regarded as binding upon a Singapore (or other common law country) court. This naturally varies with the branch of law. The binding nature can depend on whether the topic comes within the appropriate sections of the Civil Law Act or other legislation `importing` English law into Singapore.

10 The practice direction referred to, inter alia, covers the mandatory content of an applicant`s affidavits in an ex parte application for an interim injunction. The direction appears in [1983] 1 All ER 1119 at p 1120 and [1983] 1 WLR 433 at p 434. Part B para 3(1) starts off by calling attention to O 29 r 1 of the Rules of the Supreme Court which is identical to the similarly numbered rule in Singapore. Paragraph 3(2) reads:

11 As should now be clear, this practice direction merely embodies principles from a long line of decided cases. It was obviously made necessary by the rapid growth in England of ex parte applications for interlocutory injunctions in the recent past.

12 There has been a similar growth in Singapore. A practitioner in Singapore applying ex parte for an injunction (or a prerogative writ as in the Kensington Income Tax case [1917] 1 KB 486) cannot, at best, possibly go wrong if he treated the quoted part and the rest of part B of this practice direction as virtually binding on him. He would, on the lowest scale, be foolish and doing his client a gross and serious disservice if he ignored it.

13 The principles I have referred to have also long been applied in Singapore and Malaysia in ex parte applications for attachment before judgment under the respective Debtors Acts. Chelvasingam Maclntyre J in the Ipoh case of Hari Singh v Sundarammal [1965] 2 MLJ 174 in setting aside such an attachment said:

14 In this connection, also relevant is the judgment of Sinnathuray J in Leong Teng Hin v Tsuneyosu Tobuse [1979] 2 MLJ 61 .

15 I identify the plaintiffs, the four defendants and others involved in the transactions that led to these proceedings as follows -

16 References to the Act are references to the Land Titles Act (Cap 157).

17 The transactions that led to the application before me are complicated and involved. For present purposes I will only set out those that have a bearing on the issues before me.

18 On 22 January 1981 Tunas sold Tunas Building to Mayer exclusive of the 19th, 25th, 26th and 27th floors, ie the property. By the contract of sale, Mayer covenanted with Tunas by cl 25 to grant to Tunas `the right, privilege or licence to use` all parking lots on the second floor `to the intent that such right or licence shall run as a benefit to the owners of the 19th, 25th, 26th and 27th floors`. A subsidiary strata certificate of title to the property was issued on 24 December 1981.

19 It is not necessary for me to decide at this stage whether whatever rights Tunas had in the second floor parking lots constitute an `easement` or a `licence` under the Land Titles Act, if at all they do so. As for the register, there was nothing in it to give notice to the world of the interest (if any) of Tunas in the 14 parking lots when Mayer had itself registered in the Land Titles Registry as the proprietor and was issued with a certificate of title.

20 In the meantime, Mayer had on 22 June 1981 sold the property to Suwarna. Suwarna took no steps to have her interest registered in the register or noted by way of caveat on the certificate of title. Suwarna was aware of the transactions between Tunas and Mayer concerning the parking lots and on 6 August 1981 the three parties executed a deed whereby Suwarna confirmed she would ensure that upon her selling the building or part thereof, she would reserve the use of what was now restricted to the 14 parking lots for Tunas.

21 This deed of 6 August 1981 is referred to in para 8 of Tong Djoe`s affidavit in support of the ex parte application. It is exhibited as `TJ-3`. Paragraph 7 of the recital to the deed states that the 14 car park lots are `delineated in red in the plan attached hereto`. There is in fact no plan attached to the deed that was exhibited to Tong Djoe`s affidavit. As a separate exhibit was attached a copy of a caveat which in turn had a plan attached to it. The caveat is in fact dated 16 June 1983.

22 The question that begs an answer is why the plaintiffs in making a copy of the deed of 6 August 1981 omitted to photocopy the plan that was part of the deed and have it annexed to the copy of the deed.

23 On 29 September 1981 Suwarna agreed to sell Tunas Building to Crestpoint subject to the existing tenancies and licences set out in the third schedule to the agreement of that date. She also warranted that `the total rentable area ... as represented in the fourth schedule ... is true and accurate in all material aspects`. In the fourth schedule under the heading `Net Rentable Area` was an entry which reads `14 lots (ie the 14 parking lots) on the second floor reserved for use of the owners of the 25th, 26th and 27th floors`. She herself retained ownership of the 19th floor.

24 Crestpoint took steps to protect its interest as purchaser and on 3 October 1981 filed a caveat. This was withdrawn on 6 June 1982. Crestpoint lodged another caveat on 12 February 1982 and this, like the earlier caveat, was withdrawn on 6 June 1982. Crestpoint itself was never registered as proprietor.

25 On 3 and 6 February 1982, Tunas filed a caveat with regard to `car park spaces on the second floor`. Tunas on 6 February 1982 withdrew it. On the same day, it filed another identical caveat and again withdrew it on 9 February 1982.

26 On 31 May 1982 Mayer sold the property to Carrian. The transfer had `nil` against `prior encumbrances` and Suwarna as original purchaser consented `to and directs the above transfer to the transferee`, ie Carrian. No reservation was made on the 14 parking lots. On the same day, Carrian mortgaged the property to Wardley and again prior encumbrances were noted as `nil`.

27 On 2 June 1982 Carrian lodged the transfer to it of the property as defined above. Wardley as mortgagees filed a caveat. The transfer to Carrian and Carrian`s mortgage to Wardley are duly signed and sealed on the certificate of title on 1 July 1982.

28 On 16 June 1983 Tunas lodged a caveat in respect of the 14 parking lots. When the property was transferred to Carrian and when Carrian mortgaged the property to Wardley, there was no caveat in respect of whatever interest Tunas may have had in the 14 parking lots.

29 Carrian went into receivership and Wardley in the exercise of their power of sale sold Tunas Building to Jessie on 10 June 1985. The next day Jessie lodged for registration an instrument (I/6058D) of the transfer to them of the property by Wardley as mortgagors. On the certificate of title, the mortgage to Wardley and whatever interest Carrian had were extinguished. Upon the lodgment of instrument (I/6058D) of transfer of title to Jessie, the registry gave notice to Tunas under s 104(1) of the Land Titles Act stating that a transfer of Tunas Building has been presented for registration. On 18 July 1985, Tunas issued the writ with the statement of claim endorsed thereon commencing the present proceedings and the next day obtained an ex parte injunction against the `Registrar of Land Titles`.

30 In support of the ex parte injunction, the affidavit affirmed by Tong Djoe was filed. In this affidavit, most of the facts set out by me were recited. However, some key facts were not. Amongst them is the lodgment and subsequent withdrawal of two caveats in respect of the car park spaces on the second floor. This was in February 1982.

31 Let me first refer to the transaction that took place on 31 May 1982. Mayer with the consent of Suwarna transferred the property to Carrian with no reservation of the interest of Tunas in the 14 parking lots. At that date, there was no caveat in respect of the 14 parking lots. In fact, as stated above, two caveats previously lodged had been withdrawn by Tunas.

32 Carrian and Wardley as mortgagees were entitled to assume that neither Tunas nor anyone else had any interest in the second floor of Tunas Building. The effect of caveats to protect an unregistered interest in land is provided for in s 41 of the Land Titles Act. Whatever interest Tunas had in the 14 parking lots was, by s 41(4), lost by the withdrawal by Tunas of the two caveats in February 1982.

33 In the statement of claim and in Tong Djoe`s affidavit, breaches of contract are alleged against the second defendant. Against the third defendant, there is a claim for a declaration that Tunas have the irrevocable right or licence to the free and uninterrupted use of the 14 parking lots and an injunction was also sought to restrain the Registrar from registering the instrument of transfer no I/6058D.

34 Set out below are facts which certainly were known to Tong Djoe or Tunas, or which, with little effort, could be discovered by them from the registry and the certificates of title at the time the writ was issued were not disclosed to the judge hearing the ex parte application. Against each fact is set out the effect of the particular fact or facts under the Land Titles Act. The facts and their respective effects are:

35 By s 41(3) the lodgment of instrument for registration has the same effect as the entry on the date as the lodgment of a caveat protecting the interest claimed. The lodgment on 11 June 1983 for registration or transfer I/6058D by the very fact of lodgment itself gave priority over the lodgment for Tunas on 16 June 1983 of the caveat in respect of any interest that Tunas had in the parking lots. This caveat (over which the lodgment of the transfer to Carrian, the mortgage to Wardley and the transfer to Jessie had priority) is the very foundation of the entire claim of Tunas in this action against Jessie and the registry.

36 The parties who gave Jessie full title had full title to the property, inclusive of the 14 parking lots, and they acquired their interest in the property when Tunas itself had lost any interest they may have had in the 14 parking lots.

37 The non-disclosure of these facts referred to above to the judge hearing the ex parte application constituted failure to make full and frank disclosure. To these elements of non-disclosure must be added the failure to include a copy of the plan annexed to the deed of 6 August 1981 in exh TJ-3 to Tong Djoe`s affidavit.

38 There is also further non-disclosure of material facts shown by the amendments made to the statement of claim after the ex parte application. The amendment pleads facts additional to those pleaded in the original statement of claim. This must be because the plaintiffs considered them material. If they now consider them material, the question arises, why were these facts not pleaded in the original statement of claim and made known to the judge hearing the ex parte application?

39 Specifically, the amended statement of claim was filed two weeks after the grant of the ex parte application. In paras 10 and 11 are pleaded facts, set out hereinafter, very material to a judge hearing the ex parte application. These facts were not disclosed to the judge and in my view, this went beyond mere non-disclosure. It was suppression of very material facts and by itself justified my dissolving the injunction granted ex parte.

40 The 14 parking lots are the only subject of dispute between Tunas and Jessie. They are all on the second floor of the property. The injunction obtained was far wider in terms and is not restricted to the 14 parking lots or even to the parking area on the second floor. It extends to the whole estate that is registered under subsidiary strata certificate of title registered in Vol 81 Folio 86, ie the property.

41 The caveat filed by Tunas on 16 June 1983 is exhibited as TJ-4 to Tong Djoe`s affidavit filed in support of the ex parte application. The land or part thereof against which the caveat was filed is described in the caveat as part of the property `comprising those car park spaces on the second floor of Tunas Building` edged in red on the annexed plan and numbered 1 to 12 and 16 and 17. The injunction asked for and obtained should have been similarly limited.

42 It is a well-settled principle that the terms of an ex parte application should be restricted to the minimum necessary to protect the claimed interest of the applicant. In Blakemore v Glamorganshire Canal Navigation (1832) 1 My & K 154 at p 185, Lord Brougham LC said that the principle is that a court should `limit its discretion in granting injunctions, at least where no special circumstances occur ... only to such restraint ... as may suffice to stop the mischief complained of.` In the present case, the terms asked for and granted ex parte went far beyond the necessary minimum. This itself is a good ground for setting aside the ex parte injunction.

43 The amended statement of claim, which was not before the judge hearing the ex parte application, in paras 10 and 11 pleads that the caveats of February 1982 were withdrawn by Tunas to enable the sale of the property by Mayer to Suwarna and by Suwarna to Crestpoint. Further, that Mayer had undertaken to indemnify the plaintiffs for any fees that the plaintiffs might have to pay in the event that Crestpoint refused to honour the agreement made between the plaintiffs and Suwarna. This clearly shows that in the contemplation of Tunas themselves, damages would have been an adequate remedy if they did not have rights to the 14 parking lots. The adequacy of damages (which is recognized by Tunas) is itself a ground to discharge the ex parte injunction.

44 According to Tunas, they acquired rights of the 14 parking lots by the deed of 6 August 1981. It is strange that they did not file a caveat forthwith. As stated above, they did in February 1982 file caveats but these were withdrawn. Tunas subsequently filed a caveat on 16 June 1983 but this was only after Carrian refused to recognize the right of Tunas to use the 14 parking lots. To me, this delay in filing the caveat, particularly when other parties had acquired rights, amounts to laches on the part of Tunas. This laches itself is a sufficient ground for discharging the injunction obtained ex parte.

45 In the light of the law referred to and for reasons of failure to make full and frank disclosure, I discharged the injunction. As will be apparent, unnecessarily wide terms of the injunction, adequacy of damages and laches also each by itself constitute sufficient grounds for discharge of the injunction. In any case, each is an additional ground.

46 There was a second application before me. This was an application by the Registrar of Titles that the statement of claim be struck out as against the fourth defendant.

47 Before I deal with the application, there is one point not taken by the Registrar of Titles which I cannot ignore in law. The Registrar of Titles is a legal personality and a creation of statute. The relevant provision is s 5(1). A statutory legal personality has only one name and that is the name given by the statute creating that legal personality. By s 5(1), the legal personality created is the `Registrar of Titles`.

48 The fourth defendant in this action is described as `the Registrar of Land Titles`. There is no such legal personality and a writ against a person so described has no standing in that there is no legal personality against whom it can proceed. Therefore, the fourth defendant (as named in the writ) is not properly a party to these proceedings as no such legal personality exists.

49 The Registrar of Titles himself has no interest in this action. He is not interested in the property, the 14 parking lots or any part of it. He merely carries out certain statutory functions under the Act.

50 Where an injunction is granted, the Registrar acts in compliance with the injunction upon service of the injunction upon the Registrar. Any disregard by the Registrar of the terms of an injunction will constitute a contempt of court. In this context, the Registrar is very much like a person with assets of a defendant who is served by the plaintiff with a Mareva injunction. The Registrar, even if properly named as a party, should not have been made a party and the application that the statement of claim be struck out as against the Registrar was a proper one and I accordingly struck it out.

51 Order accordingly.