Abdul Gaffer v Chua Kwang Yong

• Jurisdiction: Singapore
• Judgment Date: 22 April 1994
• Date: 22 April 1994
• Docket Number: District Court Appeal No 11 of 1993
• Court: High Court (Singapore)

Abdul Gaffar bin Fathil

Plaintiff

and

Chua Kwang Yong

Defendant

[1994] SGHC 108

K S Rajah JC

District Court Appeal No 11 of 1993

High Court

Civil Procedure–Parties–Joinder–Principles governing amendment to join new defendant–Judgment in default of appearance–Application to set aside–Deliberate attempt by appellant to evade service–Whether defence of limitation a good ground–Order 13 r 8, O 15 rr 5, 6, O 20 rr 5 (1), 5 (2) and 5 (5) Rules of the Subordinate Courts 1986–Limitation of Actions–Extension of limitation period–Whether defence of limitation unassailable–Discretion of court to exercise powers–Sections 4, 6 (4) and 29 Limitation Act (Cap 163)–Order 15 rr 5, 6, O 20 rr 5 (1) 5 (2) and 5 (5) Rules of the Subordinate Courts 1986

On 3 January 1987, the appellant, while driving his employer's vehicle, collided into the respondent's vehicle, causing injuries to the latter. The respondent commenced a claim for personal injuries on 11 February 1989 against the employer but omitted making the appellant a second defendant. During the trial, the appellant gave evidence and admitted his negligence. An application to add the appellant as a second defendant to the proceedings on 13 February 1992, after the action had become time barred on 3 January 1990, was allowed. Judgment in default of appearance was entered against the appellant with damages to be assessed by the district judge. The appellant applied to set aside the judgment but the application was dismissed with costs.

The appellant argued that judgment should be set aside because the claim was time barred. Joining the appellant as a co-defendant defeated and deprived the appellant's right as to limitation which he would have had if an action had been brought by the respondent against the appellant alone.

The respondent's case was that under O 20 rr 5 (2) and 5 (5) of the Rules of the Subordinate Courts 1986, where an application to the court was made for an amendment of the writ after any relevant period of limitation current at the date had expired, the court may nevertheless grant such leave if it was just to do so. Section 6 (4) of the Limitation Act (Cap 163, 1985 Rev Ed) must be read in conjunction with O 20 r 5, a “cure” rule.

Held, dismissing the appeal:

(1) The two conditions as set out in Lim Yong Swan v Lim Jee Tee [1992] 3 SLR (R) 940 had to be satisfied when allowing an application to add a new party to an action that was time barred under O 20 r 5 (5). The party had to show that (a) the new cause of action arose out of the same or substantially the same facts as a cause of action in respect of which relief had already been claimed in the action; and (b) if the court thought it was just to grant leave to make the amendment. In the present case, there was a sufficient overlap between the facts supporting the existing claim and those supporting the claim against the appellant. Secondly, the appellant was properly ordered to be a party because it was just to grant leave. The court was required to balance the respondent's need to add a party and the prejudice to the opposing party's interests. Adding the appellant became necessary to prevent an injustice to the respondent and required a consideration of the merits of the respondent's case: at [21], [23] to [27].

(2) The jurisdiction of the court under O 15 r 6 was entirely discretionary. The power given by the rule was widely exercised though the addition of new parties may cause new expense and necessitate new evidence, and was generally only refused if serious embarrassment would be caused and generally speaking, the court made all such changes in respect of parties as may be necessary to enable an effectual adjudication to be made concerning all matters in dispute. The rule did not prevent a defendant from pleading that the plaintiff could not maintain the action but mere misjoinder or nonjoinder which was capable of being remedied would not defeat a claim. In this case, the nonjoinder was properly remedied as justice required it: at [50], [51] and [52].

(3) No explanation was given as to why service of the writ was not accepted. In this case, proceedings had been from the beginning properly formulated. The defence of limitation would not have been available to the appellant. Leave to amend defects in the writ was within the scope specified in O 15 r 6 and the effect of the proceedings was that it had been cured ab initio. The appellant was not entitled to presuppose that a court would not exercise its powers under O 20 r 8 and O 15 r 6 of the Rules of the Subordinate Courts 1986: at [56] and [57].

Chan Mui Eng v Chua Chu Huwe [1993] 3 SLR (R) 619; [1994] 1 SLR 375 (refd)

Duke of Buccleuch, The [1892] P 201 (refd)

Hartley v Birmingham City District Council [1992] 1 WLR 968; [1992] 2 All ER 213 (folld)

Hong Leong Finance Ltd v Tay Keow Neo [1991] 2 SLR (R) 841; [1992] 1 SLR 205 (refd)

Kusu Island, The [1989] 2 SLR (R) 267; [1989] SLR 119 (refd)

Lim Yong Swan v Lim Jee Tee [1992] 3 SLR (R) 940; [1993] 1 SLR 500 (folld)

Lucy v W T Henleys Telegraph Works Co Ltd (Imperial Chemical Industries Ltd, third party) [1970] 1 QB 393 (refd)

Ramsden v Lee [1992] 2 All ER 204 (folld)

Saudi Eagle, The [1986] 2 Lloyd's Rep 221 (refd)

Virginia Rhea, The [1983-1984] SLR (R) 639; [1984-1985] SLR 214 (folld)

Yew Bon Tew v Kenderaan Bas Mara [1983] 1 MLJ 1; [1983] 1 AC 553 (refd)

Limitation Act (Cap 163,1985Rev Ed)ss 4, 6 (4), 29 (consd)

Rules of the Subordinate Courts1986O 15rr 5, 6, O 20r 5 (consd);O 2,O 2r 1, O 13r 8, O 18r 7 (1), O 20,O 20r 8

Subordinate Courts Act (Cap 321, 1993Rev Ed)s 21

Limitation Act1980 (c 58) (UK) ss 11, 33

Gan Seng Chee (Ang & Pnrs) for the appellant

BJeyapalan (Samuel Jacob & Co) for the respondent.

Judgment reserved.

K S Rajah JC

1 This is an appeal from the decision of the learned district judge Mr Low Wee Ping. The appellant is the second defendant who applied for the judgment entered in default be set aside on the basis that he has an unassailable defence, that of time bar. The application was refused.

Background

2 On 3 January 1987 at about 3.00pm, the respondent was driving a motor vehicle EL 5497 U along Jalan Kolam Ayer/Jalan Toa Payoh towards the direction of Whitley Road when the appellant, coming from the opposite direction and driving motor vehicle QEJ 5455 B owned by his employers, Cameron Iron Works (S) Pte Ltd (“Cameron”) collided into him.

3 The appellant's version of events was that two unidentified cars in front of him suddenly braked, forcing him to do likewise. He lost control of his vehicle which swerved uncontrollably to the right and went over the kerb and collided into the respondent's vehicle.

4 The respondent lost consciousness and suffered some injuries. He was in hospital for seven days. His injuries eventually healed satisfactorily and there are no significant permanent deformities or disabilities.

Action

5 On 11 February 1989, the respondent commenced an action against Cameron, the appellant's employers, and omitted making the appellant the second defendant.

6 The trial took place on 31 January 1992. The appellant gave evidence, and in his examination-in-chief and cross-examination admitted his negligence.

Default judgment

7 An application was made to make the second defendant a party to the proceedings on 13 February 1992 during the trial after the action had become time barred on 3 January 1990. The application was allowed although s 6 (4) of the Limitation Act 1985 (Cap 163) provides that an action for damages for negligence shall not be brought after the expiration of three years from the date on which the cause of action accrued.

8 The respondent's solicitors wrote to the appellant and gave notice of the commencement of action. The appellant was told that the court had given leave to the respondent to amend the writ of summons and statement of claim to add the appellant as a defendant.

9 By virtue of the rights of subrogation, the insurers were an interested party.

10 The insurers, AIU (Singapore) Pte Ltd (“AIU”), were asked to give the name of its solicitors who would accept service of the writ of summons on behalf of the appellant, failing which action would be taken to serve the writ on the appellant without further notice.

11 Goh Poh & Partners, who were acting for the appellant's employers, were told that the writ of...