Civil Procedure
| Citation | (2002) 3 SAL Ann Rev 71 |
| Published date | 01 December 2002 |
| Date | 01 December 2002 |
6.1 In Progress Software Corp (S) Pte Ltd v Central Provident Fund Board[2002] 4 SLR 367, the plaintiff sought to challenge the CPF Board”s decision to classify a portion of wages paid to four employees as “additional wages” under the Central Provident Fund Act (Cap 36, 2001 Ed) (“CPF Act”). The Board applied to strike out these proceedings on the grounds that the action should have been brought under O 53 of the Rules of Court (Cap 322, R 5, 1997 Ed). That application was denied and an appeal to a judge in chambers was dismissed. The Board did not appeal to the Court of Appeal.
6.2 At the hearing of the originating summons, the Board repeated its objection to the mode in which this action had been commenced. The court stated that the objection was not entirely without merit but held that the matter was res judicata, having been decided by another High Court judge and the Board having forgone its right of appeal to the Court of Appeal.
6.3 In Regenthill Properties Pte Ltd v Management Corporation Strata Title Plan No 2192[2002] 3 SLR 445, the Court of Appeal ruled that the originating summons did not satisfy either of the two limbs of O 7 r 3(1). Firstly, the originating summons did not set out the relief or remedy claimed and secondly, it did not set out sufficient particulars to identify the cause or causes of action.
6.4 In The Antares V[2002] 1 SLR 443, the High Court reiterated that the plaintiff is expected to serve his writ during the initial period of its validity unless there is a “good reason” why he cannot do so. Rubin J accepted the prevalent view that these words cannot be defined and what is a “good reason” depends on the particular circumstances of the case and overall fairness (applying The Lircay[1997] 2 SLR 669; Kleinwort Benson Ltd v Barbrak Ltd (The Myrto) (No 3)[1987] AC 597 and Jones v Jones[1970] 2 QB 576). Also
see The Ching Ho[2001] 4 SLR 285, in which the High Court stated that good reasons would also exist if:
(a) the parties expressly or impliedly agree to defer service of the writ;
(b) the delay was induced or contributed to by the opposing party; or
(c) there had been clear difficulties in effecting service (particularly if the defendant had been evading service).
6.5 In Oversea-Chinese Banking Corp Ltd v Measurex Corp Bhd[2002] 4 SLR 578, the parties agreed that in the event of a dispute, service was to be effected on a “process agent”. Therefore, service on the process agent was sufficient even if the writ did not reach the defendants before judgment in default was obtained (see O 62, r 3(2)).
6.6 In BNP Paribas v Polynesia Timber Services Pte Ltd[2002] 4 SLR 933, the High Court clarified the position relating to the service in Malaysia of a Writ of Summons issued by the Singapore High Court.
6.7 The plaintiffs obtained leave to serve the Writ of Summons on the second defendant outside the jurisdiction in Malaysia. The plaintiffs requested (through the Registrar of the Singapore High Court) that the Registrar of the High Court of Kuala Lumpur serve the Writ on the second defendant at his Kuala Lumpur residence. The plaintiffs were subsequently informed that service had failed.
6.8 The plaintiffs then applied for leave to effect substituted service by advertising in the Malaysian newspapers. The second defendant did not enter an appearance and judgment in default was obtained. The second defendant subsequently applied to set aside service and the default judgment.
6.9 The High Court noted that service through Malaysian judicial authorities came about because of the decision in United Overseas Bank Ltd v Wong Hai Ong[1999] 1 MLJ 474 which interpreted the decision of the Malaysian Court of Appeal in Sunkyong International Inc v Malaysian Rubber Development Corp Bhd[1992] 2 MLJ 146 to extend to service of foreign legal process in Malaysia having to go through Malaysian judicial authorities.
6.10 The High Court noted that under O 11 r 3(3) of the Rules of Court, an originating process served out of Singapore need not be served personally so long as it is served in accordance with the law of the country in which
service is effected. However, service by the process server of the Kuala Lumpur High Court had not been in accordance with a Practice Direction of the Malaysian High Court. The High Court held that non-compliance with the Practice Direction was not fatal as the Practice Direction was not law but merely a direction for administrative purposes. Further, it would be unduly harsh to penalise the plaintiffs for the mistakes of the process server.
6.11 The orders made by the High Court are particularly noteworthy. Having found that the grounds of the second defendants” application to set aside service and default judgment had not been made out, the High Court ordered that the plaintiffs were to re-serve the writ of summons on solicitors appointed by the second defendant. If solicitors were not appointed, the judgment in default would stand.
6.12 Though not expressly stated, the High Court likely drew its power from O 13 r 8 which permits the court to set aside default judgment “on such terms as it thinks just”. Having found that the second defendants” main complaint was on the matter of service, the High Court decided that the best course was to set aside the default judgment in a manner which ensured that service was effected and therefore the main issues in the case could be addressed. After all, as noted by the learned judge at [37] and [38], the whole purpose of substituted service was to ensure that legal process was brought to the attention of defendants. That having been done, it appears that the High Court was not minded to allow technicalities to prevent the progress of this case.
6.13 In PT Garuda Indonesia v Birgen Air[2002] 1 SLR 393, the plaintiffs filed a notice of originating motion to set aside an arbitral award. They then applied ex parte for leave to serve the notice of originating motion on the defendants out of Singapore under O 69A r 4 and for substituted service within Singapore. This application was granted by the assistant registrar. On appeal to a judge in chambers, service was set aside on the grounds that there had been material non-disclosure on the part of the plaintiffs in their ex parte application and this was not a proper case to grant leave to serve out of the jurisdiction.
6.14 On further appeal, the Court of Appeal agreed that service should be set aside because Indonesia, not Singapore, was the most appropriate forum. The lease agreement which was the subject of the arbitration was governed by Indonesian law. Further, the Court of Appeal held that the place of arbitration was Jakarta, Indonesia, even though the hearings had been held in Singapore. As such, art 34 of the Model Law on International Arbitration and s 24 of the International Arbitration Act (Cap 143A, 1995 Ed) did not apply to provide
an avenue to set aside the arbitral award. There was thus no basis for the notice of originating motion to have been filed in Singapore.
6.15 Since Singapore was not the most appropriate forum for this dispute, this was not a proper case in which to grant leave to serve the notice of originating motion out of the jurisdiction. The Court of Appeal found it unnecessary to deal with the issue of whether there had been material non-disclosure on the plaintiffs”ex parte application.
6.16 In Drolia Mineral Industries Pte Ltd v Natural Resources Pte Ltd[2002] 3 SLR 163, the High Court concluded that once a foreign plaintiff commences an action in Singapore, he submits to the jurisdiction “in respect of any matter that may properly be the subject of a counterclaim. He cannot be heard to say that he has not submitted to the jurisdiction in respect of a counterclaim properly raised against him” (ibid, at [22]). (See s 16(1)(b) of the Supreme Court of Judicature Act (Cap 322, 1999 Ed) and s 19(3)(b) of the Subordinate Courts Act (Cap 321, 1999 Ed).) Accordingly, the plaintiff”s argument that his action for breach of contract was not a submission to the jurisdiction in respect of the defendant”s counterclaim for libel was dismissed.
6.17 A writ which specifies that the defendant may enter an appearance 21 days after service of the writ (pursuant to O 12 r 4(b)) “counting the day of service” is irregular because O 3 r 2(2) states that the day of service is to be excluded. The High Court ruled that this was an irregularity which could be rectified without injustice (see Oversea-Chinese Banking Corp Ltd v Measurex Corp Bhd[2002] 4 SLR 578).
6.18 There were four reported decisions on applications for stay of proceedings. One was an application for a stay in favour of arbitration proceedings. The other three cases were applications for stay on the grounds of forum non conveniens.
6.19 In Mae Engineering Ltd v Dragages Singapore Pte Ltd[2002] 3 SLR 45, the plaintiffs were paid only a portion of certain sums due under interim payment certificates issued by the defendants. The plaintiffs commenced arbitration proceedings and subsequently sued in the High Court and then
sought summary judgment. The defendants asked that the court stay proceedings in favour of the arbitration proceedings.
6.20 The defendants” application was pursuant to s 7 of the Arbitration Act (Cap 10, 2002 Ed) which states that a stay can be granted if the court is “satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement”.
6.21 The court referred to the Court of Appeal”s decision in Kwan Im Tong Chinese Temple v Fong Choon Hung Construction Pte Ltd[1998] 2 SLR 137 where it was stated that it was inappropriate for the court to use summary judgment principles to determine whether a stay of summary judgment proceedings should be granted. The purpose of summary...
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