CA (SINGAPORE)
WEE CHONG SIN, CJ, KULASEKARAM, J & RAJAH, JJ
THE FIRST NATIONAL BANK OF CHICAGO
versus
TAN LAI WAH
CIVIL APPEAL NO 63 OF 1980
Decided On : 05-20-81
(delivering the judgment of the Court): This appeal arises from a judgment of D'Cotta J., dated July 3, 1980, dismissing a claim by the appellants (plaintiffs) against the respondent (4th defendant) for the sum of $2,520,198.91 together with interest thereon on a guarantee dated April 18, 1974 by the 4th defendant in favour of the plaintiffs.
The plaintiffs' claim against the 1st defendant, the borrower, was for the sum of $2,520,198.91 with interest thereon at 8% per annum, due and owing by the 1st defendant in respect of overdraft facilities extended by the plaintiff bank to the 1st defendant. The claim against the 2nd, 3rd and 4th defendants arose out of three separate guarantees executed by each of them guaranteeing the due payment by the 1st defendants to the plaintiffs of moneys owing in respect of the said overdraft facilities.
In March 1973 the 2nd defendant agreed to purchase from Tomlinson Pte. Ltd. for about $2.7 million 40,523 sq. ft. of land and bungalow erected thereon and in a dilapidated condition known as No. 10 Tomlinson Road (No. 10), which was then zoned residential on the Master Plan. He was able on his own to pay the 10% deposit on the purchase price but payment to the vendor of the balance of the purchase price was effected by the 1st defendant through overdraft facilities provided for it by the plaintiffs up to the limit of $2.5 million for principal moneys with liberty to the bank to increase such limit up to such further or additional amount as may be fixed by the bank at its absolute discretion for a period of one year from the date of the first drawdown and thereafter the renewal of such overdraft facilities was to be reviewed anew. The conveyance of No. 10 was then taken in the name of the 1st defendant, of which the 2nd and 3rd defendants were directors, and immediately thereafter a legal mortgage, in which the 2nd and 3rd defendants joined in as sureties, was executed, bearing the date May 2, 1973, by the 1st defendants, as owners of No. 10, in favour of the plaintiffs in respect of the said overdraft facilities. Before the mortgage deed was signed the 2nd and 3rd defendants had each of them executed separately on April 18, 1973 unlimited guarantees in favour of the plaintiffs securing the overdraft account. Before the said overdraft facilities was approved by the plaintiffs Messrs. Victor & Mendis, a firm of land valuers, valued No. 10 for the bank at $4.8 million. It should be noted, however, that No. 10 was not valued by the valuers as residential property, which was its then zoning on the Master Plan, but as commercial property, on assumptions the valuers were not justified in making, and which, perhaps, accounts for the great disparity between the actual purchase price and the amount at which No. 10 was valued. It is also relevant to note that the 4th defendant acted as broker in the purchase of No. 10 for which she was paid her commission. It was not disputed that whenever the 1st defendants were unable to meet interest payments on the mortgage the 1st defendants would borrow from the 4th defendant and that she had thus in all lent the company a sum of about $280,000. It was also not in dispute that the 4th defendant (1) had had a Chinese education up till the age of 14 years, (2) could, in her own words, "understand simple every day English, not the profound type", (3) was a land broker of some 17 to 18 years standing, (4) was running an adequately staffed office for this purpose, (5) had a translator and interpreter in her office for translating and interpreting to her, from Hokkien into English and vice versa letters and documents relating to her business, (6) had legal advisers whom she could readily call upon, (7) is a fairly competent business woman in a highly competitive field of business, (8) was a director of two companies which she had formed herself and (9) had previously executed guarantees in English.
The first drawdown on the overdraft account was on April 18, 1973. I
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