Aathar Ah Kong Andrew v OUE Lippo Healthcare Ltd

• Judge: Andrew Phang Boon Leong JCA
• Judgment Date: 10 May 2021
• Neutral Citation: [2021] SGCA 48
• Citation: [2021] SGCA 48
• Court: Court of Appeal (Singapore)
• Published date: 13 May 2021
• Docket Number: Civil Appeal No 157 of 2020 (Summonses Nos 6 and 19 of 2021)
• Plaintiff Counsel: Chow Chao Wu Jansen and Sasha Anselm Gonsalves (Rajah & Tann Singapore LLP)
• Defendant Counsel: Henry Li-Zheng Setiono and Daniel Tan An Ye (Ang & Partners),The respondent in CA/SUM 6/2021 and CA/SUM 19/2021 in person,Beverly Wee (Insolvency & Public Trustee's Office)
• Subject Matter: Civil Procedure,Appeals,Notice,Striking out,Legal Profession,Discharge of counsel
• Hearing Date: 15 April 2021

Andrew Phang Boon Leong JCA (delivering the judgment of the court): Introduction

CA/SUM 19/2021 (“SUM 19”) and CA/SUM 6/2021 (“SUM 6”) are applications arising from CA/CA 157/2020 (“CA 157”), which is an appeal by Mr Aathar Ah Kong Andrew (“Mr Aathar”) against the decision of the High Court Judge (“the Judge”) in HC/RA 310/2019 (“RA 310”). SUM 19 is an application by the respondent in CA 157, OUE Lippo Healthcare Limited (“OUELH”), to strike out the notice of appeal in CA 157 (“NOA”). SUM 6 is an application by Mr Aathar’s solicitors, Ang & Partners (“A&P”), to discharge themselves from acting for Mr Aathar in CA 157.

While we would ordinarily regard SUM 19 and SUM 6 as straightforward matters, they are complicated by the fact that Mr Aathar has been less than forthcoming in disclosing relevant information to this court. Owing to Mr Aathar’s evasive conduct, there were several important pieces of information which only came to light during the hearing itself, and even then, only after several rounds of questioning on our part.

Having considered the parties’ arguments and the material before us in detail, our view is that both SUM 19 and SUM 6 should be allowed. These are the grounds of our decision.

Facts Background

The full facts and procedural history of this matter are set out in the Judge’s written judgment in Re Aathar Ah Kong Andrew [2020] SGHC 173 (“the Judgment”).

In brief, Mr Aathar is an investor who ran into serious financial difficulties in or around 2015 and eventually faced bankruptcy proceedings in February 2016. In his attempt to stave off these proceedings, Mr Aathar has proposed a total of three voluntary arrangements (“VA(s)”).

The first two VAs, which were proposed by Mr Aathar in 2016 and 2017 respectively, were passed at creditors’ meetings. However, on the application of objecting creditors, approvals for the first and second VAs were revoked by an Assistant Registrar and by a High Court Judge, respectively. Mr Aathar’s appeal in respect of the second VA was subsequently dismissed by this court (see Aathar Ah Kong Andrew v CIMB Securities (Singapore) Pte Ltd and other appeals and another matter [2019] 2 SLR 164).

On 24 January 2019, Mr Aathar proposed the third VA. The third VA also passed at a creditors’ meeting but was objected to by OUELH, which then applied in HC/SUM 3309/2019 (“SUM 3309”) to revoke approval for the third VA. SUM 3309 was allowed by an Assistant Registrar, whose decision was upheld on 17 August 2020 by the Judge in RA 310. Notably, Mr Aathar was adjudged bankrupt on 13 November 2019, during the course of the proceedings for RA 310. He remains an undischarged bankrupt to date.

Facts and procedural history pertaining to CA 157

On 17 September 2020, A&P filed the NOA, ostensibly on Mr Aathar’s behalf, seeking to appeal against the Judge’s decision in RA 310 by way of CA 157.

There is some inconsistency between A&P’s and Mr Aathar’s accounts of the circumstances surrounding the filing of the NOA. A&P alleges that it filed the NOA solely on the instructions of Mr Aathar’s wife, and that she did not represent herself to be Mr Aathar’s agent at the material time. Consequently, A&P takes the position that the NOA was filed without Mr Aathar’s authority. Mr Aathar, on the other hand, claims that he had requested his wife to instruct A&P to file the NOA on his behalf, and therefore regards himself as having indirectly authorised A&P to file the NOA.

Notwithstanding this discrepancy, there are two crucial facts pertaining to the filing of the NOA which are not in dispute. The first is that, as at the time of filing the NOA, A&P did not possess a warrant to act from Mr Aathar. The second is that Mr Aathar did not obtain the Official Assignee’s (“OA”) consent to commence CA 157 prior to the filing of the NOA. We will elaborate on the significance of these two facts below.

On 9 November 2020, OUELH filed CA/SUM 125/2020 (“SUM 125”), seeking a stay of the proceedings in CA 157 pending Mr Aathar’s payment of outstanding costs in the proceedings below and in earlier proceedings. SUM 125 was heard by Quentin Loh JAD on 19 January 2021. Loh JAD made no order as to SUM 125 as he found that the requirements for a stay were not satisfied. However, as it had transpired during the hearing that, inter alia: (a) A&P did not have a warrant to act from Mr Aathar; and (b) Mr Aathar had not obtained the OA’s prior sanction to commence CA 157, Loh JAD observed that there might be sufficient grounds for OUELH to obtain an order to strike out the NOA.

On the same day as the hearing for SUM 125, A&P applied in SUM 6 to discharge itself from acting for Mr Aathar in CA 157, on the basis that Mr Aathar wished to engage new solicitors, namely, LVM Law Chambers LLC (“LVM”), to take over the conduct of the matter. However, on 17 February 2021, one day before SUM 6 was heard, OUELH filed SUM 19 seeking to strike out the NOA. As SUM 19 touched on issues pertaining to Mr Aathar’s and A&P’s solicitor-client relationship, SUM 6 was adjourned to be heard together with SUM 19 on 15 April 2021 (“the Hearing”).

On the afternoon of 14 April 2021 (ie, the eve of the Hearing), Mr Aathar wrote to court requesting to adjourn the Hearing, asserting that: (a) he required proper legal advice to file his submissions against the striking-out application; (b) LVM was presently in contact with the OA regarding his prosecution of CA 157; and (c) he believed that he could obtain the OA’s consent to prosecute CA 157. At 9.20pm on the same day, Mr Aathar sent a further e-mail to the court stating that he would not attend the Hearing as he did not have any lawyers to advise him on whether he could do so without the OA’s consent. We directed Mr Aathar to attend the Hearing and to make any application for adjournment in person. Mr Aathar eventually attended the Hearing as directed.

During the Hearing, we made clear to Mr Aathar that we were unable to accede to his request to adjourn the Hearing for two reasons. First, Mr Aathar had not produced any objective evidence whatsoever to prove that LVM had indeed been in contact with the OA. Second, Mr Aathar had been informed of the date of the Hearing since 9 March 2021. He had not taken issue with the hearing date then and had even written to court on 19 March 2021 stating that he could attend the Hearing via Zoom. Given the extremely belated and unsubstantiated nature of Mr Aathar’s request, it was evident to us that Mr Aathar was simply trying to game the system and prolong the proceedings without having any legitimate reason to do so. We thus allowed the Hearing to proceed as scheduled.

Deemed withdrawal of CA 157

Before addressing the substantive issues in SUM 19 and SUM 6, we first address the preliminary issue as to whether CA 157 ought to be deemed withdrawn.

This issue was brought to our attention by way of a letter from OUELH to court dated 13 April 2021. In this letter, OUELH highlighted that Mr Aathar had not filed the Appellant’s Case for CA 157 by 2 April 2021, being the deadline by which this court had directed him to do so. Consequently, OUELH argued that CA 157 had to be deemed withdrawn pursuant to O 57 r 9(4) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”), subject to the court’s powers to extend time for the filing of the Appellant’s Case.

Order 57 r 9(4) (read with O 57 r 9(1)(b)) of the ROC provides that an appeal to this court shall be deemed to have been withdrawn if the appellant omits to file the Appellant’s Case within two months of the service of the notice of appeal, but that “nothing in this Rule shall be deemed to limit or restrict the powers of extending time conferred upon the Court of Appeal”.

In this case, the NOA was filed on 17 September 2020, which means that the Appellant’s Case would ordinarily have been due for filing on 17 November 2020. However, OUELH subsequently applied for and was granted an order for the timelines for the filing of the parties’ respective cases to be stayed pending the disposal of SUM 125. Upon the disposal of SUM 125, the deadline for serving and filing the Appellant’s Case was extended to 2 April 2021. As Mr Aathar has failed to meet even the extended deadline, there is no doubt that CA 157 must be deemed withdrawn unless we grant Mr Aathar an extension of time to file his Appellant’s Case.

The principles governing the court’s power to grant an extension of time in the context of O 57 r 9(4) are well-established. In short, this power is “purely discretionary”, and the burden lies squarely on the party seeking an extension to raise sufficient grounds to persuade the court to show sympathy to him (see the decision of this court in BNP Paribas SA v Jacob Agam and another [2019] 1 SLR 83 at [87], citing Singapore Civil Procedure 2018 vol 1 (Foo Chee Hock JC gen ed) (Sweet & Maxwell, 2018) at para 57/9/12). In our view, Mr Aathar has not discharged this burden. First, and as explained above, the deadline for filing and serving the Appellant’s Case has already been stayed once, pending the determination of SUM 125. While it may have been OUELH, and not Mr Aathar, who applied for this stay, the fact remains...