MANDATORY INJUNCTION UNDER O 13 R 1 OF THE RULES OF COURT 2021
The case of Xingang Investment Pte Ltd and another v Lai Jianling [2024] SGHC 93 concerned a claimant’s application for mandatory injunction to be granted against an absent and unrepresented defendant, for which the High Court declined to grant.
Facts. The 1st claimant, an excluded moneylender under s 2(e)(iii) of the Moneylenders Act 2008 (2020 Rev Ed), entered into a written loan agreement (“the Agreement”) with Zhongsen Trading Pte Ltd (“Zhongsen”) for a loan of $800,000 (at [1]). The 2nd claimant is the director of the 1st claimant (at [1]).
Pursuant to the Agreement, among others, the defendant executed a power of attorney (the “POA”) in favour of the 2nd claimant over a property (the “Property”) for which she was the sole registered owner of (at [2]). The POA was successfully registered and deposited in the Registry of the High Court pursuant to s 48 of the Conveyancing and Law of Property Act 1886 (2020 Rev Ed) and O 26 r 4 of the Rules of Court 2021 (2020 Rev Ed) (at [2]).
The POA expressly gave the 2nd claimant (on behalf of the 1st claimant) the power to sell and/or dispose of the Property in the event of default by Zhongsen in the repayment of the loan agreement (at [3]).
Zhongsen failed to repay the entire loan by the stipulated date, so the 1st claimant’s solicitors wrote to inform the defendant of the 1st claimant’s intention to exercise the rights and powers granted under the POA, and requested for her to vacate the Property and hand over such keys or access cards (at [4]).
There were subsequent attempts to contact the defendant by AR registered post and WhatsApp, but no response was received (at [5]). The 1st claimant’s representatives attempted twice to conduct a site visit of the Property but were denied access on both times, despite having sent a letter for the defendant to comply after the first visit (at [5]).
Application. Therefore, the claimants took out this application for a mandatory injunction under O 13 r 1 of the Rules of Court 2021 (2020 Rev Ed) (at [5]).
The claimants sought, among others, orders that the defendant render and/or provide all assistance necessary and without delay in order for the 2nd claimant to exercise the powers, right and/or privileges granted to her under the POA (at [6]).
The claimants tried to analogise their current application to the High Court decision in Zheng Hongfan v Singaravelu Murugan [2019] SGHC 184 (“Zheng Hongfan”), where the 1st claimant had succeeded in its application for a mandatory injunction for orders which were similar to those sought in the present case (at [7]).
However, the High Court distinguished the present case on the basis that the defendant here was absent and unrepresented (at [8]).
In contrast, the defendant in Zheng Hongfan, “who was the guarantor under that loan agreement, did not dispute the debt nor the default of the borrower, and was present at the hearing.” (at [7]).
The High Court was of the view that the claimants should obtain judgment before seeking the remedy for breach (at [8]).
The High Court’s reasoning at [8] – [9] is excerpted below:
“ 8 The present case can be distinguished from Zheng Hongfan. The defendant here was absent, and unrepresented. I did not have the benefit of her arguments, if any. An application for a mandatory injunction compelling the defendant to comply, based on the claim that there was a default on the part of the defendant, is tantamount to granting a final judgment with leave to execute the judgment debt. I am of the view that the claimants should obtain judgment on the default of the Agreement, before they seek the remedy for breach, especially one as onerous as the present case. The sale of the Property is irreversible and irrevocable.
9 Further, I am not satisfied that the claimants will suffer serious damage if the mandatory injunction is not granted. The claimant seeks to recover a monetary debt under the Agreement, but that in itself is not sufficient to show that serious damage will be caused. Counsel for the claimants also submits that the blameworthiness of the defendant makes it fair to grant a mandatory injunction, because the defendant had ignored all of the correspondences issued by Xingang’s solicitors. It may well be that once judgment is obtained, the defendant, or Zhongsen, may offer to discharge their obligations under the Agreement, but if it does not, the claimants may execute on the judgment debt and reapply.”
(emphasis added)
The High Court made clear that while the present application was dismissed, the claimants are at liberty to apply when they have judgment debt to execute (at [10]).
Significance. This case sheds light on the interaction between obtaining a judgment and seeking a mandatory injunction, and in particular, the Court’s view on the importance of obtaining a judgment before seeking certain remedies, especially ones as significant as a mandatory injunction.
This was even if (as the claimants argued) the defendant’s conduct of ignoring all of the correspondences issued by the 1st claimant’s solicitors was blameworthy.
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