Areco International Pte Ltd v Tay Hoe Keng and Another

• Jurisdiction: Singapore
• Judge: Valerie Thean Pik Yuen
• Judgment Date: 19 April 2004
• Neutral Citation: [2004] SGDC 97
• Court: District Court (Singapore)
• Year: 2004
• Published date: 28 April 2004
• Plaintiff Counsel: Mr Bernard Sahagar (Lee Bon Leong and Co)
• Defendant Counsel: Mr Morris Yow (David Chong and Partners)
• Subject Matter: Civil Procedure,Striking out of the statement of claim,Whether it was an abuse of action for the Plaintiffs to commence a fresh action after the previous action was struck out.
• Citation: [2004] SGDC 97

19 April 2004

District Judge Valerie Thean:

1. This was an appeal against the deputy registrar's dismissal of an application to strike out an action under O. 18, r.19. I dismissed the defendants' appeal and they have appealed therefrom.

Facts

2. On 21 November 2002, the plaintiffs commenced DC 4987 of 2002 against the defendants, suing for unpaid commission upon the sale and purchase of a house, 32K Nassim Road. On 6 June 2003, the defendants applied to strike out the statement of claim by way of summons-in-chambers 11355 of 2003. This summons in chambers was heard on 10 July 2003. The deputy registrar made the following orders:

1. The plaintiffs to file a formal summons-in-chambers to amend the statement of claim within seven (7) days from the date of this order, the said application to amend to be fixed for hearing at the same time as the adjourned summons-in-chambers 11355 of 2003F, failing which the present statement of claim be struck out with costs;

2. Summons-in-chambers 11355 of 2003F be adjourned for further hearing on 31 July 2003; and

3. Costs of the adjournment fixed at $200 to be paid by the plaintiffs to the defendants.

3. The plaintiffs failed to comply with the unless order. The defendants followed on by filing summons-in-chambers 14565 of 2003X on 18 July 2003, asking for the matter to be struck out for non-compliance with the unless order of 10 July. This was heard by the same deputy registrar on 31 July 2003. At the same time, the plaintiffs filed a summons-in-chambers 14646 of 2003X, to amend his statement of claim. This was listed for hearing on 31 July 2003 also. The deputy registrar made the following orders on 31 July 2003:

1. In respect of summons-in-chambers 14565 of 2003X, the plaintiffs' statement of claim be struck out with costs due to the failure to comply with the order of court made on 10 July 2003 requiring the plaintiffs to file an application to amend the statement of claim within 7 days from 10 July 2003;

2. Costs of the action from the plaintiffs to the defendant at $6,000 with disbursements fixed at $1,086.60; and

3. No order as to summons-in-chambers 11355 of 2003F, 11581 of 2003S and 14646 of 2003X.

4. On 21 October 2003, the plaintiffs, having in the meanwhile changed solicitors, filed a fresh action, suing again for the commission. The defendants applied thereafter to strike out this action. The application was dismissed by the deputy registrar and the defendants appealed therefrom.

Application under O.18, r.19

5. It was conceded that the subject matter of both actions is the same. It was also not seriously contended that the present Statement of Claim is defective. The defendants rely on res judicata in the wider sense. Their premise was that the second action was designed to get around the plaintiff's non-compliance with the unless order in the first action. They contend that the statement of claim in the second action amounted to an amendment of the statement of claim in the first action. The plaintiffs, having failed to file an application to amend in the first action, should not now be allowed to proceed with the second action. They rely on Changhe International Investments Pte Ltd v Banque Internationale A Luxembourg BIL (Asia) Ltd [2000] 4 SLR 449 and Ching Mun Fong v Liu Cho Chit [2000] 1 SLR 517.

6. In Changhe, an unless order was made in a pre-trial conference. The plaintiffs did not comply with the order and the defendants' counsel made an inter partes application by summons in chambers to perfect the order. An order was made dismissing the plaintiffs' claim with costs. Subsequently, the plaintiffs' new solicitors applied to set aside the order of 8 March 2000, claiming that the order should not have been sought, as there was already an unless order. The defendants submitted that this application was in fact an appeal to a fellow assistant registrar to overturn the order of the previous assistant registrar and was incorrect. The application was dismissed by the assistant registrar, who was upheld on appeal. Amarjeet Singh JC held that the assistant registrar could not vary the order of the earlier assistant registrar as he lacked the jurisdiction to do so. He stated that the plaintiffs could not relitigate the matter save by way of appeal which they had failed to file. The defendants contend that, as with Changhe, they have perfected the unless order by way of a summons in chambers when the deputy registrar struck out the first action on 31 July 2003. Thus they argue Amarjeet JC's statement, that the plaintiff "may not re-litigate the same matter save by way of an appeal" applies in this case.

7. In my view, the defendants have taken Amarjeet JC's statement out of context. In that case, the plaintiffs, rather than appeal from the order of 8 March, sought to vary the order by application to another assistant registrar. It was in that context that Amarjeet JC stated that they could not re-litigate the matter (that is, they could not re-open the order of 8 March), they should simply have appealed from the order of 8 March. Amarjeet JC did not consider the case as to whether the plaintiffs would be able to file a fresh action within the relevant limitation period.

8. Ching Mun Fong concerned...