Chua Kok Tee David v DBS Bank Ltd [2015] SGHC 198

In Chua Kok Tee David v DBS Bank Ltd, the Singapore High Court considered whether an individual could claim repayment of a fixed deposit (“FD”) that it had placed with a bank in 1983, when the bank had no records of the existence of the deposit beyond February 1984. The High Court reviewed the relevant law on the burden of proof and admissibility of evidence, including that relating to the bank’s record keeping procedures, along with other legal defences. On the balance of probabilities it decided that the individual had closed the deposit account in or before 1985.

Allen & Gledhill Partner Tham Hsu Hsien represented the successful bank in this case.

Facts

The plaintiff, Mr David Chua Kok Tee (“DCKT”), opened two FD accounts with DBS Bank Ltd (the “bank”) in 1983. The bank issued DCKT with FD receipts for both accounts and DCKT placed these in its safe deposit box, also held with the bank. In 2012, the bank terminated its safe deposit box facility and DCKT retrieved the two FD receipts when closing his safe deposit box.

DCKT then claimed repayment of both FDs. The bank immediately found records relating to, and the amount owed under, one account (the “9756 account”) but no trace of the other (the “9246 account”). After investigating the 9246 account, the bank informed DCKT that its records showed the account had been closed but the lapse of time meant it could not provide details of the closure.

In August 2013, DCKT commenced the action, claiming amounts due to him under both the 9246 account and the 9756 account. The bank accepted that it remained indebted to DCKT under the 9756 account. Accordingly, the High Court’s judgment related solely to the 9246 account. The bank’s defence was that the debt was repaid and the account closed in or before 1985.

Burden of proof

The bank argued that the burden of proof rested on DCKT because he alleged that the bank owed him a debt. However, DCKT argued that the burden rested on the bank because it asserted that the debt was repaid by the end of 1985. The High Court considered the Evidence Act (the “EA”) and found the burden to lie with the bank both generally in the proceedings and in relation to the specific factual issue of whether the debt was repaid and the account closed.

In relation to the burden in the proceedings themselves, the High Court found that under section 104 of the EA “it is a debtor [in this case the bank] who admits having borrowed money from a creditor [in this case DCKT] who bears the burden of proving that he is not, at the time of the suit, indebted to the creditor”. In relation to the burden on a specific fact, the High Court found that section 105 of the EA placed the burden of proving that the account was closed by the end of 1985 on the bank, as they asserted this fact. Finally, the High Court considered section 108 of the EA, which places the burden of proving a fact upon the person who has that fact within his knowledge. If a debtor admits a debt but states that it has been repaid, the fact of repayment is within its knowledge so the burden of proving that fact rests with the debtor, here the bank. The High Court felt that placing the burden of proof on the bank caused it no hardship. Placing the burden on the creditor would cause far greater hardship, as he would essentially have to prove a negative, i.e. that the debt had not been repaid.

Was the 9246 account closed in or before 1985?

The High Court found there was no direct evidence, such as the testimony of a teller that he personally handed the funds to DCKT, of the 9246 account’s closure. The bank therefore had to rely on circumstantial evidence. The only evidence available to it fell into two categories, first the fact that there was no trace of the 9246 account in its records from February 1984 onwards and secondly, the conduct of DCKT, which the bank alleged was inconsistent with DCKT believing that the bank remained indebted to him under that account. In relation to the absence of records relating to the 9246 account, the High Court allowed the oral evidence of the relevant bank staff as their evidence was given from their personal knowledge. It also allowed admission of all of the bank’s documents as evidence of the truth of their contents, without the need for formal proof and without the makers of the documents being available for cross examination, because they fell under the definition of “banker’s books” in section 172 of the EA.

The bank’s record-keeping systems and procedures

The High Court found that the bank employed three different systems for keeping records of FD accounts over the period in question. The bank used a manual paper system from the 1970s to 1982 before transitioning to a computerised system during the period 1982 to 1985. During the transitional period, the paper system continued at the branches but head office ran a computerised system where it received FD information in batch control documents and captured it in a central database. From 1985 to date, the bank used a fully computerised system.

From the 1970s to 1982 when the bank employed a manual paper system, a withdrawal from an FD account could be made on presentation of the FD receipt. Withdrawal could be made without presentation of the original receipt if the customer could verify his identity and indemnify the bank against any loss it may suffer by allowing a withdrawal without presentation of the original receipt.

No trace of the 9246 account

The bank’s computerised system therefore had records of all FD accounts in operation since 1985. It contained no record of the 9246 account, although it did have a record of the 9756 account. This suggested the 9246 account was closed before transition to the computerised system in 1985. In addition, some of the relevant batch system documents survived. These were batch control sheets for six months in 1984, the earliest being February. None contained any record of the 9246 account, which suggested it had been closed prior to February 1984. The bank also had a microfiche archive of imaged FD statements going back to 1985. This archive contained statements for the 9756 account but nothing for the 9246 account, again suggesting it was closed before the bank began issuing FD account statements in 1985. Finally, in accordance with the bank’s document retention policy, most documents from the paper system dated before 1985 had been destroyed. However, in a surviving document detailing those FD outstanding on the 30 March 1985, the 9756 account was listed but not the 9246 account, which again suggested it was closed before that date. In relation to all of the above, the High Court found that the absence of a record where one would expect there to be one can be evidence from which inferences can be drawn. The strength of such evidence in this case depended entirely on the bank satisfying the High Court that its systems and procedures were sufficiently robust and rigorous that the closure of the 9246 account in or before 1985 was, on the balance of probabilities, the only explanation for its absence from the records. The more robust and rigorous the systems were, the stronger the inferences that could be made.

On the bank’s evidence in relation to its systems and procedures, the High Court found the absence of the 9246 account from its records to be sufficiently strong evidence to discharge the bank’s burden of proof and show that it must have been closed in or before 1985. This was sufficient to dispose of the claim, but the High Court also considered DCKT’s conduct over the years. The fact that DCKT seemed disinterested in the 9246 account and did not query the fact that he did not receive receipts or statements for it did suggest he closed it in or before 1985. However, that inference would not have been sufficiently strong on its own to establish that the account had been closed as there were too many alternative explanations for DCKT’s conduct which could not be excluded on a balance of probabilities.

Judgment

In the High Court’s opinion DCKT most likely closed the account sometime between May 1983 and February 1984 without producing the original receipt, in accordance with the bank’s standard procedures, and forgot that he had done so. The High Court therefore found that, on the balance of probabilities, DCKT closed the 9246 account in or before 1985 and his claim was dismissed with costs.