Civil Procedure
| Published date | 01 December 2005 |
| Author | Jeffrey PINSLER LLB (Liverpool), LLM (Cambridge), LLD (Liverpool); Barrister (Middle Temple, UK), Advocate and Solicitor (Singapore); Professor, Faculty of Law, National University of Singapore. Cavinder BULL MA (Oxford), LLM (Harvard); Barrister (Gray’s Inn, UK), Attorney-at-Law (New York State); Advocate and Solicitor (Singapore). |
| Date | 01 December 2005 |
6.1 There were three reported cases concerning appeals. One case dealt briefly with the requirement for leave when a party sought to argue new points which had not been raised at the trial below. The other two cases dealt with a notice of appeal, and one also considered whether leave to appeal was necessary when multiple grounds of appeal existed, and the effect of a ‘no-appeal’ clause when parties appointed a court expert.
6.2 In Ng Bok Eng Holdings Pte Ltd v Wong Ser Wan[2005] 4 SLR 561, the appellants brought up a new argument which had not been raised in the court below. The respondent objected that no leave had been obtained under O 57 r 9A(4)(b) of the Rules of Court (Cap 322, R 5, 2004 Rev Ed). The Court of Appeal held that the appellants would not be allowed to canvass the new point and agreed with the respondent”s contention that the respondent had been deprived of the opportunity to put before the trial judge all evidence relevant to the issue at the time the action had been instituted.
6.3 In Projector SA v Marubeni International Petroleum (S) Pte Ltd (No 2)[2005] 2 SLR 1, the appellant (‘Projector’) was dissatisfied with the outcome of its application to discharge an injunction granted to the respondent (‘MIP’). Projector appealed against certain parts of the judge”s orders. Subsequently, Projector applied to amend its notice of appeal to include an appeal against another part of the orders imposed. In dismissing Projector”s application, the learned judge considered all factors leading to the application for amendment (see Projector SA v Marubeni International Petroleum (S) Pte Ltd[2004] 4 SLR 241). The judge took the view that
Projector had made a deliberate decision with the benefit of legal advice in relation to the contents of the original notice of appeal. Projector had also displayed a lack of candour in explaining why the proposed amendment had initially been left out. Projector appealed against the judge”s decision.
6.4 The Court of Appeal allowed Projector”s application to set aside the order for dismissal. The court considered Leong Mei Chuan v Chan Teck Hock David[2001] 2 SLR 17 and the English case of Costellow v Somerset County Council[1993] 1 WLR 256, and stated that the correct interpretation of Leong Mei Chuan v Chan Teck Hock David was that a court should be inclined to grant an application for amendment unless grave prejudice or hardship (and not merely inconvenience) would be inflicted on the opposing party that could not be addressed by an order as to costs. If the prejudice could be addressed by an order as to costs, then an order for amendment should be granted unless the other circumstances of the case were exceptional.
6.5 On the present facts, if the amendment was allowed there would be a month”s notice before the hearing of the appeal. MIP would have sufficient opportunity to address the substance of the amendment. The amendment also did not raise any new points. Although MIP had started participating in related South Korean proceedings in reliance on the part of the orders that Projector now sought to include in its notice of appeal, any expenditure on MIP”s part could be adequately addressed by an order as to costs. Projector”s lack of candour in its explanations was not serious enough to amount to an abuse of process, although it was good practice for a party seeking the court”s assistance to make full disclosure of the circumstances that led to the default.
6.6 In Riduan bin Yusof v Khng Thian Huat[2005] 2 SLR 188, the respondents had applied to strike out the notice of appeal, inter alia, on the ground that the notice of appeal was irregular.
6.7 The Court of Appeal held that even if the notice of appeal did not adhere to the prescribed form, the court had the discretion to allow amendments to remedy the irregularity. In addition, unless the irregularity was so serious or fundamental that the court ought not to exercise its discretion, mere irregularities would not render the proceedings void.
6.8 In the present case, the respondents were unable to elaborate on how the alleged irregularity, if any, was so serious as to merit a striking out. The respondents” allegation was no more than a bare assertion and the application was dismissed.
6.9 In Riduan bin Yusof v Khng Thian Huat (supra para 6.6), the appellant”s notice of appeal was based on two issues: (a) damages; and (b) costs. In their application to strike out the notice of appeal, the respondents tied their argument to strike out the appeal on costs to their arguments on the issue of damages. They submitted that if the appeal on damages failed, the only matter left would be an appeal on costs. Such an appeal required leave but this had not been obtained.
6.10 The Court of Appeal held that this argument was fallacious. Leave to appeal on the specific issue of costs was not required in this case precisely because the notice of appeal was not based solely on those grounds.
6.11 In Riduan bin Yusof v Khng Thian Huat (supra para 6.6), the appeal arose out of a dispute over a tenancy agreement. One issue was the respondent landlords” claim for compensation for damage to the property. It was not in dispute that the appellant tenant had caused some damage to the property. However, there was substantial disparity between the expert evidence of both parties on the degree of damage, the apportionment of fair wear and tear and the quantum of the claim. At the suggestion of the trial judge, the parties agreed to appoint a court expert on these issues. The agreed terms contained the provision that:
The Expert”s decision [on the quantum of damages] shall be final and binding on both parties, and no appeal or revision shall be brought in respect of the Expert”s decision.
6.12 Subsequently, the trial judge indicated that he had adopted the court expert”s finding on damages in his grounds of decision. In the respondents” application to strike out the notice of appeal, they argued that the decision of the trial judge read together with the above clause precluded the appellant from bringing any appeal on damages.
6.13 The Court of Appeal held that the respondents had wrongly equated the court expert”s report with the judge”s order on damages. There was a distinction between the findings of the court expert and the trial judge”s decision to base the quantum of damages on such findings. As long as the appellant did not seek to challenge the accuracy of the court expert”s findings, the notice of appeal on the issue of damages would not constitute an abuse of process.
6.14 Nine reported decisions dealt with the issue of costs. Six illustrate when the conduct of the parties would warrant a departure from the general principle that costs should follow the event. One case involved the personal liability of a solicitor, another case considered the enforcement of an agreement for costs between a solicitor and his client, and the last reported decision concerned various miscellaneous points.
6.15 Two judicial attitudes are suggested by the six decisions in this area. First, the courts are more forgiving of conduct prior to and leading up to proceedings where parties are acting under their perceived rights. Second, behaviour during proceedings which disrupt or unnecessarily prolong the matter will be penalised.
6.16 The High Court decision in Khng Thian Huat v Riduan bin Yusof[2005] 1 SLR 130 and the subsequent Court of Appeal ruling in Riduan bin Yusof v Khng Thian Huat (No 2)[2005] 4 SLR 234 demonstrate both approaches. The appellant tenant had leased property from the respondent landlords. The parties agreed that various alterations would be made at the tenant”s expense. Clause 2(I) of the tenancy agreement governed the tenant”s rights to remove authorised alterations to the property in the event that it was delivered up to the landlords.
6.17 The main dispute at trial was whether the lease had been validly renewed or whether the landlords were entitled to claim double rent for the tenant”s unlawful holding over. The action started in the Subordinate Courts but was later transferred to the High Court upon the landlords” application, as they anticipated that their claim for double rent would exceed the Subordinate Courts” jurisdiction.
6.18 In the High Court trial, it was found that the lease had been validly renewed and the landlords” claim for double rent was dismissed. However, there was also a claim by the landlords for damage caused to the property which was undisputed save as to quantum. The trial judge interpreted cl 2(I) as obliging the tenant to hand over the property inclusive of the authorised alterations. As the tenant had removed the authorised alterations, damages were assessed on the basis that the tenant had not been entitled to do so. A court expert was also appointed to assess the extent of damage caused.
6.19 Although the tenant had succeeded on the main issue of whether double rent was payable, each party was initially ordered to bear its own costs. While recognising that the parties had spent an inordinate length of time addressing the landlords” unsuccessful claim for double rent, the trial judge decided to give particular regard to the parties” conduct both prior to and during proceedings. The trial judge felt that proceedings had been initiated because the tenant had forced the landlords” hands. The tenant had unreasonably demanded from the landlords payment for the benefit of alterations, then, motivated ‘purely by malice and ill will’, he had wilfully damaged the property by removing the alterations in breach of cl 2(I) and despite the landlords” unequivocal requests that he should leave the alterations intact. In addition, the tenant”s disruptive conduct during trial had lengthened the hearing and exacerbated the tension...
To continue reading
Request your trial