Ang Kim Soon v Sunray Marine Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 11 April 1997
• Date: 11 April 1997
• Docket Number: Suit No 808 of 1995 (Registrar's
• Court: High Court (Singapore)

Ang Kim Soon

Plaintiff

and

Sunray Marine Pte Ltd

Defendant

[1997] SGHC 93

Choo Han Teck JC

Suit No 808 of 1995 (Registrar's Appeal No 54 of 1997)

High Court

Civil Procedure–Judgments and orders–Default judgment–Judgment entered against defendant who failed to file and serve defence–Parties proceeding to trial in related matter–Plaintiff granted leave to cross-examine and participate in that trial–Judgment in favour of defendant–Whether defendant entitled to set aside default judgment after judgment in its favour–Conduct of defendant–Whether plaintiff would be prejudiced if default judgment set aside

The plaintiff, a workman, was injured as the result of an explosion on board the vessel where he was working. The plaintiff commenced a common law action against the defendant, his employer. The defendant did not file a defence. Subsequently, the plaintiff's action was transferred to the High Court to be tried together with another suit. That suit involved the employer's insurers' claim against the shipowner for an action in indemnity. The employer's solicitors informed the plaintiff's solicitors that the shipowner's solicitors proposed that the plaintiff's action be stayed and that parties abide by the outcome of insurer's claim.

However, at a pre-trial conference, the shipowner's solicitors intimated that the shipowner did not intend to be bound by the outcome of the insurer's claim vis-à-vis the plaintiff who was not a party to the suit. Accordingly, the plaintiff's solicitors wrote to the employer's solicitors and asked that they file their defence. When the employer's solicitor failed to do so, the plaintiff entered interlocutory judgment in default of defence against the employer. The employer did not apply to set aside the judgment and the insurer's claim proceeded to trial where the trial judge directed that all parties participate in the trial and leave was given to the plaintiff to cross-examine the witnesses and that the evidence adduced would form part of the evidence in the plaintiff's action.

The trial judge found that the shipowner was entirely responsible and further concluded that he could not adjudge on the employer's indemnity claim against the shipowner nor the common law claims by the plaintiff against the employer. The employer and the shipowner both appealed against the trial judge's decision. The employer only then applied to set aside the interlocutory judgment on the basis that by virtue of the trial judge's decision, the plaintiff's case had to fail. The assistant registrar allowed the employer's application and the plaintiff appealed.

Held, allowing the appeal:

(1) The conduct of the defendant in defending the case could and must be considered by the court, even if it did not amount to estoppel in law: at [15].

(2) The principle of election and the maxim about approbating and reprobating were, in origin, rules of equity and as such gave some indication of where the justice of a case lay: at [15].

(3) In the instant appeal, in the light of the chronology of the case and the conduct of the parties, it was too late for the employer to set aside the default judgment. Once the liability was disputed, the employer was bound to set aside the interlocutory judgment at the earliest opportunity. Accordingly, on the balance of equities, the default judgment should not be set aside and the appeal was allowed: at [16], [21] and [22].

Abdul Gaffer bin Fathil v Chua Kwang Yong [1994] 3 SLR (R) 1056; [1995] 1 SLR 484 (distd)

Lotus M, The [1997] 1 SLR (R) 197; [1997] 2 SLR 570 (refd)

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

Vaun v Awford (refd)

Workmen's Compensation Act (Cap 354, 1985 Rev Ed) s 18 (b)

Kwok-Chern Yew Tee (Lawrence Chua & Partners) for the plaintiff

Liew Teck Huat (Niru & Co) for the defendant.

Choo Han Teck JC

1 The plaintiff was a marine fitter under the employ...