Anwar Siraj and Another v Ting Kang Chung John

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 09 December 2009
• Neutral Citation: [2009] SGCA 61
• Citation: [2009] SGCA 61
• Defendant Counsel: Ng Yuen (Malkin & Maxwell LLP)
• Published date: 23 December 2009
• Plaintiff Counsel: The appellants in person
• Date: 09 December 2009
• Docket Number: Civil Appeal No 18 of 2009 (Summons No 4120 of 2009)
• Court: Court of Appeal (Singapore)
• Subject Matter: Striking out Notice of Appeal served out of time,Civil Procedure

9 December 2009

Chao Hick Tin JA (delivering the grounds of decision of the court):

Introduction

1 This was an application made by Ting Kang Chung John (“the applicant”) to strike out the appeal, Civil Appeal No 18 of 2009 (“the appeal” or “CA 18/2009”), filed by Anwar Siraj and Norma Khoo (“the appellants”) against the decision of the High Court in Anwar Siraj and another v Ting Kang Chung John and another [2009] SGHC 71. We granted the application to strike out the appeal and now give our reasons.

Background to application

2 A brief account of the main events leading to the application to strike out the appeal are these. Pursuant to an agreement signed on 30 December 1999 (“the Agreement”) the appellants had engaged Teo Hee Lai Building Construction Pte Ltd (“Contractor”) to demolish and reconstruct their house located at No 2 Siglap Valley. The Agreement provided that in the event of a dispute arising thereunder, the same would be referred to arbitration. It also provided that in the event of the parties being unable to agree on the appointment of an arbitrator, the President of the Singapore Institute of Architects (“SIA”) was empowered to appoint an arbitrator for them.

3 In July 2001, a dispute arose between the appellants and their Contractor, and they were unable to agree on an arbitrator. Accordingly, on 12 December 2001, the President of the SIA appointed the applicant, John Ting, as the sole arbitrator. As will be seen, from then on, for one reason or another, the parties, as well as the arbitrator, were mired in one difficulty after another.

4 The appellants were unhappy with the applicant as the appellants felt that the latter did not proceed with the arbitration with due despatch. The appellants complained about the applicant’s competence as an arbitrator and even alleged bias on his part and proceeded to institute Originating Motion No 26 of 2002 to have him removed as arbitrator. The High Court ruled that there were insufficient grounds to remove the applicant as arbitrator in Anwar Siraj and another v Ting Kang Chung and another [2003] 2 SLR 287 as the allegations of misconduct and bias were not shown on the facts.

5 The appellants alleged that on 13 May 2003, the applicant required the parties pay the sum of $50,000 by 27 May 2003 as arbitration fees before he would commence the arbitration hearing. The Contractor claimed to have made payment of its share of the fees, ie, a sum of $25, 000, on 10 September 2003.

6 Thereafter, arbitration hearing began. However, the appellants complained that on 24 November 2003 the applicant conducted the arbitration hearing ex parte, with only the presence of the Contractor but not the appellants. They further claimed that the applicant refused to furnish them with copies of the notes of hearing when so requested. However, on 1 December 2003, the applicant invited the Contractor and the appellants to present submissions. The appellants replied that without the benefit of the notes of evidence, they were unable to do so.

7 On 15 April 2005, after a lapse of more than a year, the applicant wrote the arbitration award, but refused to release it until the appellants or the Contractor paid the sum of $199,178.40, which represented the balance of his total fees (at $242,200).

8 On 2 June 2006, the appellants filed Suit No 348 of 2006/M (“Suit 348/2006”) against the Contractor claiming for overpayment.

9 On 21 September 2006, the applicant filed Originating Summons No 1807 of 2006/S (“OS 1807/2006”) against the Contractor (as the first defendant) and the appellants (as second and third defendants) seeking an extension of time from the court to issue his award. He also prayed for an order that the Contractor and the appellants do jointly and severally pay the sum of $199,178.40 as arbitrator’s fees.

10 On 24 September 2008, by way of Originating Summons No 1231 of 2008/W (“OS 1231/2008”), the appellants sought to set aside the arbitration award rendered by the applicant, and to obtain an order declaring that the arbitration agreement had ceased to have any effect.

11 On 31 October 2008, by way of an application (Summons No 4814/2008/F) made in OS 1231/2008, the appellants asked for, inter alia, the following orders:

a. pursuant to O 4 r 1 of the Rules of Court (Cap No 322, R 5, 2006 Rev Ed) (“ROC”), that the three proceedings, namely, OS1231/2008, OS1807/2006 and Suit 348/2006 be consolidated;

b. any other directions which the court may deem fit and just to make in respect of the aforementioned consolidation;

c. pursuant to O 28 r 8 and O 5 rr 2 and 4 of the ROC, that OS1231/2008 be converted into a writ of summons;

d. any other directions which the court may deem fit and just in respect of the aforementioned conversion;

e. that the police and/or Commercial Affairs Department (“CAD”) and/or other investigating authority be directed to:

(i) speedily complete their investigations into the magistrate’s complaints (namely, CM-002943-04, CM002436-04 and CM-002282-05) and to furnish their comprehensive report to the court;

(ii) speedily investigate all allegations of fraud, cheating and falsification of bills made against the applicant, the Contractors and their agents; and all allegations of criminal negligence due to loss of documents or any other evidence resulting from the actions/omissions of the applicant.

12 The third prayer listed in [11] above was considered by the High Court in Anwar Siraj and another v Ting Kang Chung John and another [2009] SGHC 129 and was dismissed. Being dissatisfied, the appellants filed an appeal (Civil Appeal No 49 of 2009) against that decision. The appeal in Civil Appeal No 49 of 2009 was dismissed by this court which found that as there was really no substantial dispute of fact in OS 1231/2008 necessitating the conversion of the originating summons into a writ; witnesses could be cross-examined on specific aspects of their affidavits.

13 The fifth prayer (see [11] above) came up for consideration by Lee Seiu Kin J who, in his decision in Anwar Siraj and another v Ting Kang Chung John and another [2009] SGHC 71, declined to make the orders. He also awarded costs to the applicant. The appellants filed an appeal (ie, CA18/2009) against this decision. This was the appeal which the applicant sought to strike out and which we had granted.

The High Court’s decision

14 Lee J declined to make the orders asked for in the fifth prayer essentially on two grounds. First, a judge had no power to order the police to conduct an investigation or to speed up that process. Second, even if the court had such a power, it would not exercise that power because there was no connection between the events which formed the subject matters in the magistrate’s complaints and the dispute in OS1231/2008, or in the other related proceedings involving the arbitration dispute. This was how Lee J explained the position (at [2] of his grounds of decision):

... I informed the plaintiffs that criminal complaints are investigated by the police and if any criminal offence is disclosed as a result of such investigation, the matter is referred to the Public Prosecutor who decides whether an offence is made out and if so, whether to prosecute the offender. While a judge may refer criminal complaints to the police for investigation, he has no power to order them to conduct an investigation if they decide not to do so, or to speed up any investigation. I would add that even if I had such power, in the circumstances of this case, in particular the fact that there was no connection between the events complained of in the three Magistrate’s complaints referred to in prayer 5 of the Summons and the dispute in this originating summons or any of the related cases, viz Originating Summons No 1807 of 2006 and Suit 348 of 2006, I would not be inclined to exercise such discretion to make those orders.

After the High Court decision

15 Lee J made his ruling on 19 January 2009. Thereafter, on 5 February 2009, this court, in Civil Appeal No 172 of 2008 (which arose from an interlocutory application made in OS 1807/2006), made the direction that OS1807/2006 and OS1231/2008 were to be consolidated and heard together by the same judge. The court also directed that all parties were enjoined from making any further applications or filing of further affidavits in respect of the aforesaid consolidated originating summonses.

16 In the meantime, pursuant to the decision of Lee J (see [13] above), the solicitors for the applicant filed a bill of costs for taxation. By a letter dated 16 February 2009, the appellants demanded that the applicant made an application to adjourn the hearing of the taxation of the bill, failing which the appellants would proceed to file a notice of appeal against Lee J’s decision.

17 On 19 February 2009, the appellants, who acted in person in this matter and related proceedings, filed the appeal (ie, CA 18/2009) against the decision of Lee J. However, the appellants did not, as required, pay the prescribed security for costs of the appeal. Neither did they serve the notice of appeal on the applicant. Instead, the appellants only made payment of the security for costs on 23 July 2009 and served the notice of appeal on the applicant’s solicitors on the 24 July 2009.

18 In the meantime, by a letter dated 23 February 2009, the appellants informed the applicant that on 19 February 2009 a notice of appeal had been filed against Lee J’s decision, and should the applicant choose to proceed with the taxation of the bill, the appellants would proceed to serve the notice of appeal in CA 18/2009 on the applicant.

Period within which notice of appeal must be served

19 The period within which a notice of appeal must be served on the respondent is prescribed in O 57 r 4 of the ROC which reads:

Time for appealing (O. 57, r. 4)

4. Subject to this Rule, every notice of appeal must be filed and served under Rule 3 (6) within one month —

(a) in the case of an appeal...