Aries Telecoms (M) Bhd v ViewQwest Pte Ltd

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Woo Bih Li J
• Judgment Date: 12 April 2017
• Date: 12 April 2017
• Docket Number: Suit No 860 of 2013 (HC/Summons No 974 of 2017)

[2017] SGHC 83

High Court

Woo Bih Li J

Suit No 860 of 2013 (HC/Summons No 974 of 2017)

Aries Telecoms (M) Bhd

and

ViewQwest Pte Ltd (Fiberail Sdn Bhd, third party)

Troy Yeo (Chye Legal Practice) for the applicant/plaintiff;

John Sze and Nicola Loh (Joseph Tan Jude Benny LLP) for the respondent/defendant.

ACB v Thomson Medical Pte Ltd [2017] 1 SLR 918 (refd)

Aberdeen Asset Management Asia Ltd v Fraser & Neave Ltd [2001] 3 SLR(R) 355; [2001] 4 SLR 441 (refd)

Bozson v Altrincham Urban District Council [1903] 1 KB 547 (folld)

Citiwall Safety Glass Pte Ltd v Mansource Interior Pte Ltd [2015] 1 SLR 797 (refd)

Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 (refd)

Downeredi Works Pte Ltd v Holcim (Singapore) Pte Ltd [2009] 1 SLR(R) 1070; [2009] 1 SLR 1070 (refd)

Lee Kuan Yew v Tang Liang Hong [1997] 2 SLR(R) 862; [1997] 3 SLR 489 (refd)

Lim Chi Szu Margaret v Risis Pte Ltd [2006] 1 SLR(R) 300; [2006] 1 SLR 300 (folld)

Nasco Gem, The [2014] 2 SLR 63 (refd)

OpenNet Pte Ltd v Info-Communications Development Authority of Singapore [2013] 2 SLR 880 (folld)

Salaman v Warner [1891] 1 QB 734 (refd)

Strathmore Group Ltd v A M Fraser [1992] 2 AC 172 (refd)

Sun Jin Engineering Pte Ltd v Hwang Jae Woo [2011] 2 SLR 196 (folld)

Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR(R) 525; [2006] 2 SLR 525 (refd)

White v Brunton [1984] QB 570 (refd)

Xin Chang Shu, The [2016] 3 SLR 1195 (refd)

Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 14 r 12 (consd); O 14 r 12(1)(b), O 33 r 2, O 56 r 3(1)

Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) s 34, s 34(1)(a), s 34(1)(c)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) ss 34(1)(a), 34(2)(d), Fifth Schedule (consd); s 34, Fourth Schedule, Fourth Schedule para (i), Fifth Schedule para (e)

Supreme Court of Judicature (Amendment) Act 2010 (Act 30 of 2010)

Civil Procedure — Appeals — Leave to appeal — Defendant consented to interlocutory judgment in favour of plaintiff — Plaintiff subsequently applied for determination of preliminary issue on its entitlement to certain reliefs — Court ruled that plaintiff was not entitled to certain reliefs — Plaintiff appealing against order — Whether leave to appeal to Court of Appeal required — Whether order was final or interlocutory order — Section 34(2)(d) and Fifth Schedule Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

The plaintiff brought a claim against the defendant for conversion arising from the defendant's refusal to return certain equipment to the plaintiff. The equipment was returned before the trial of the action without prejudice to the parties' rights. After the trial was part heard over several days, the defendant consented to an interlocutory judgment in favour of the plaintiff. The judge granted such interlocutory judgment on the same day. Subsequently, the plaintiff filed Summons No 5786 of 2016 for the determination of a preliminary issue pursuant to O 14 r 12 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed). The preliminary issue was whether the plaintiff was entitled to (a) an account of profits made by the defendant arising from the conversion of the equipment or (b) an order that the defendant disgorge such profits to the plaintiff.

In the course of arguments, the plaintiff claimed, in the alternative, punitive, exemplary or aggravated damages. The hearing continued on the basis that the judge was also to rule on those damages. On 7 February 2017, the judge ruled that the plaintiff was not entitled to claim an account of profits or a disgorgement of profits, or punitive, exemplary or aggravated damages from the defendant (“the 7 February 2017 Order”).

On 23 February 2017, the plaintiff filed a notice of appeal to the Court of Appeal against the 7 February 2017 Order. The defendant took the position that the plaintiff required leave to appeal. The plaintiff then filed Summons No 974 of 2017 by which it sought a declaration that no leave to appeal to the Court of Appeal was required in respect of the 7 February 2017 Order. Alternatively, if leave to appeal was required, an extension of time was sought to file the same application for such leave and an order for such leave to be granted.

Held, granting the application:

(1) A final order would not come within the meaning of “an order at the hearing of an interlocutory application” as stipulated in para (e) of the Fifth Schedule to the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”). An appeal to the Court of Appeal would be available as of right: at [14] and [15].

(2) To determine if an order was a “final order”, the question was whether the order finally disposed of the rights of the parties (“the Bozson test”). The Bozson test was cited with approval by the Court of Appeal in Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR(R) 525 (“Wellmix”), where it was suggested at [14] that “dispose” means making a determination on the substantive rights of the parties, after hearing them on the merits. However, the original formulation of the BozsonENR test did not say that “dispose” had to be a determination on the substantive rights after hearing parties on the merits. The word “dispose” was neutral. A case could be disposed of either on the merits or without a decision on the merits. Thus in principle, an interlocutory default judgment, whether on the merits or not, would be a final order: at [16] to [18], and [22] to [25].

(3) There was dicta in Wellmix at [15] which suggested that an interlocutory judgment obtained after a hearing in chambers with damages to be assessed was not a final order as that was only a partial determination of the parties' rights. There was also dicta in Wellmix at [16] which suggested that an order would only constitute a final order if it disposed of everything in an application or an action. However, the original formulation of the BozsonENR test did not require the order to dispose of the entire cause of action, or determine all the claims or all the heads of damages claimed in the action, to be considered a final order. Thus an interlocutory judgment with damages to be assessed was a final order as it finally disposed of the question of liability between the parties: at [26], [28] to [30], [40] and [68].

(4) In Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 (“DorseySC”), the Court of Appeal observed that an application made under O 14 r 12 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”) for the determination of a preliminary issue could result in the making of a final order, in that the court might dismiss the action or cause judgment to be entered. However, there was no suggestion in Dorsey that the “judgment” mentioned could not include an interlocutory judgment. It seemed that Dorsey implicitly departed from WellmixENR so that an interlocutory judgment on the merits obtained in chambers would be a final order: at [41] and [42].

(5) In so far as an application made under O 14 r 12 of the ROC could result in the dismissal of an action or cause judgment to be entered, that was in the context of an action with a single cause of action and a single relief claimed. The Court of Appeal in DorseySC was providing an illustration only. For cases that involve multiple causes of action or various reliefs, not every order made on an O 14 r 12 application would result in the dismissal of the entire action or cause judgment to be entered. The order might only determine a claim or issue in the action. However, no distinction should be made between the two. Each was a final order because each finally disposed of the substantive rights of the parties on an issue in the action: at [44] to [49].

(6) The legislative purpose underlying s 34 and the Fifth Schedule to the SCJA was to restrict the proliferation of appeals to the Court of Appeal where no substantive right was in issue, and to preserve the right of appeal whenever a substantive right of a party was disposed of. Therefore, the view that an order dismissing a claim for one head of damage was a final order did not contravene the purpose of the legislative scheme. On the contrary, if such an order were to be considered an interlocutory order, then inconsistency, injustice and a wastage of time and costs might result: at [50], [53] and [54].

[Observation: The dicta in Wellmix at [15] was confined to a case where an interlocutory judgment was obtained in chambers after an argument on the merits. However, as a matter of principle, it was difficult to justify why there should be a difference between an interlocutory judgment obtained in chambers and one obtained in open court. Such a dichotomy might mean that a plaintiff, instead of seeking such a judgment in chambers, should wait to go to open court and obtain the “same” judgment: at [32] to [37].

Leave to appeal would generally be granted in one of three situations as stated in Lee Kuan Yew v Tang Liang Hong [1997] 2 SLR(R) 862. These were a prima facie case of error, a question of general principle decided for the first time, or a question of importance upon which further argument and a decision of a higher tribunal would be to the public advantage. However, that case was concerned with a question of costs. Where the order appealed against affected the substantive rights of the parties, the court could grant leave to appeal notwithstanding that none of these three situations was established: at [80] and [81].]

12 April 2017

Woo Bih Li J:

Introduction

1 Summons No 974 of 2017 (“Summons 974”) was an application by the plaintiff, Aries Telecoms (M) Berhad (“Aries”) for a declaration that no leave to appeal to the Court of Appeal was required in respect of an order I made on 7 February 2017 (“the 7 February 2017 Order”). Alternatively, if leave to appeal was required, the application also asked for an extension of time to file the (same) application for such leave and an order that such leave be granted. After hearing...