Abdul Gaffer v Chua Kwang Yong

• Jurisdiction: Singapore
• Judgment Date: 28 December 1994
• Date: 28 December 1994
• Docket Number: Civil Appeal No 101 of 1994
• Court: Court of Appeal (Singapore)

Abdul Gaffer bin Fathil

Plaintiff

and

Chua Kwang Yong

Defendant

[1994] SGCA 141

M Karthigesu JA

,

L P Thean JA

and

Chao Hick Tin J

Civil Appeal No 101 of 1994

Court of Appeal

Civil Procedure–Judgments and orders–Judgment obtained in default of appearance–Principles to be applied in determining whether to set aside default judgment–Order 13 r 8 Rules of the Subordinate Courts (Cap 321, R 1, 1993 Ed)–Civil Procedure–Pleadings–Amendment–Plaintiff applying to add defendant as party to action after limitation period expired–Whether leave to amend writ should be granted–Whether O 15 r 6 Rules of the Subordinate Courts relevant–Order 15 r 6 and O 20 r 5 Rules of the Subordinate Courts (Cap 321, R 1, 1993 Ed)

The plaintiff/respondent was involved in a road accident with the defendant/appellant, who was driving in a car owned by his employer (“Cameron”). The respondent subsequently commenced an action in the Subordinate Courts against Cameron. In his evidence in his trial, the appellant admitted that he was negligent. At the adjourned hearing, the respondent applied to add the appellant as a party to the action. The district judge granted the application. By this time, the limitation period had long expired.

The trial was adjourned to enable service to be effected on the appellant. The solicitors of the insurer of the vehicle driven by the appellant informed the respondent's solicitors that they had no instructions to accept service of the amended writ.

Leave was obtained to serve the writ out of jurisdiction. However, service could not be effected. Instead substituted service was effected by sending the writ to the appellant at Cameron's premises. The appellant did not enter any appearance and a default judgment was entered against him.

The appellant subsequently applied to set aside the default judgment. This application was dismissed by the district judge whose decision was affirmed by the High Court.

The appellant appealed, arguing that he clearly had an absolute defence, limitation, and that the circumstances of the present case did not fall within O 20 r 5 (3), 5 (4) or 5 (5) of the Rules of the Subordinate Courts (Cap 321, R 1, 1993 Ed) to enable the court to grant leave to include the appellant as the second defendant pursuant to O 20 r 5 (2).

Held, allowing the appeal:

(1) The court could only grant leave to amend after the limitation period had expired if the cause came within the three situations mentioned in O 20 rr 5 (3), 5 (4) and 5 (5). There was no general power to grant leave to amend where limitation had intervened. The present case clearly did not come within r 5 (3), 5 (4) or 5 (5). Rule 5 (5) only applied where a new cause of action was proposed against an existing defendant. It could not apply to the situation where a new defendant was proposed to be added to an existing action: at [12], [13] and [14].

(2) Order 15 r 6 was of no relevance. Rule 6 (2) (b) only provided that the court might order joinder of a party if his presence was necessary to ensure that all matters in dispute in the cause or matter might be effectually and completely determined. Firstly, there was nothing to prevent the action by the respondent against Cameron from being effectually and completely determined. It was not “necessary” to add the appellant as a defendant, though it might well be desirable. Secondly, the rule did not seek to override the limitation period. Rule 6 (2) should be applied subject to limitation: at [16].

(3) The principles upon which the court should exercise its discretion under O 13 r 8 were: (a) the defence must both have a real prospect of success and carry some degree of conviction; and (b) if proceedings were deliberately ignored, this conduct must be considered “in justice” before exercising the court's discretion to set aside the default judgment: at [17].

(4) The appellant had a good defence to the action instituted by the respondent against him. The fact that the insurer of the vehicle driven by the appellant did not instruct solicitors to accept service and enter appearance on behalf of the appellant should not ipso facto disentitle the appellant to have the default judgment set aside. Firstly, the respondent was told that limitation would be raised as a defence. Secondly, the evidence showed that the amended writ, which was effected by substituted service, was not brought to the attention of the appellant. The insurer was not obliged to accept service on behalf of the appellant. Thirdly, the appellant would...