Bank Nationale de Paris v Shin Hong Hang Enterprise Pte Ltd and Others

• Jurisdiction: Singapore
• Judge: Lai Kew Chai J
• Judgment Date: 11 May 1988
• Neutral Citation: [1988] SGHC 39
• Date: 11 May 1988
• Subject Matter: Making application made after substantial time lapse from date of court orders,Appeals,Leave to appeal out of time,Leave,Whether special circumstances exist to justify application,Civil Procedure,O 56 Rules of the Supreme Court 1970
• Docket Number: Summons in Chambers No 6766 of 1987
• Published date: 19 September 2003
• Defendant Counsel: Teo Guan Teck (Teo Guan Teck & Co)
• Court: High Court (Singapore)
• Plaintiff Counsel: Joseph Yoong Tat Choy (Tang & Co)

Cur Adv Vult

By Summons-in-Chambers No 6766 of 1987 filed as late as 6 October 1987, the plaintiffs sought leave to appeal and leave to appeal out of time to the Court of Appeal against the order I made on 16 May 1985 whereby I entered judgment against the first defendants in the sum of $47,712.80, interest and costs on a current account and whereby I ordered that the plaintiffs do stay execution against the first defendants as the principal debtors and against the second, third and fourth defendants who were sued as guarantors. By prayer 3 of the same Summons-in-Chambers No 6766 of 1987, the plaintiffs also bought leave to appeal and leave to appeal out of time to the Court of Appeal against my decision made on 17 November 1986 whereby I allowed the decision of the registrar, ordering a stay of execution against the second, third and fourth defendants pending the trial of the counterclaim of the first defendants, to stand. By prayer 4, the plaintiffs sought leave to appeal out of time in respect of the aforesaid two decisions I made. It will be seen that the plaintiffs` applications were made after a delay of about two years and five months after my first order was made and almost 11 months after my second decision was made. It should also be noted that the plaintiffs have not appealed against the registrar`s order of stay of execution against the second, third and fourth defendants which was made on 30 August 1985.

The plaintiffs` applications first came up before me for healing on 9 November 1987. As the defendants were served with the affidavits only on 7 November 1987, the applications had to be adjourned to a date to be fixed after the year end vacation. The matters have come up again today for consideration.

To, understand how the plaintiffs` applications arose, I need to recite the procedural history of this case. In this action, the plaintiffs as bankers claimed the sum of $47,212.80, interest and costs against the first defendants for banking facilities, including overdraft facilities. The plaintiffs also claimed against the second, third and fourth defendants as guarantors under a written guarantee dated 12 April 1984.

On 8 October 1984, the plaintiffs took out an application only against the first defendants for summary judgment. No application was made against the second, third and fourth defendants presumably because they had not been served with the writ. In an affidavit filed on behalf of the first defendants by the second defendant on 8 November 1984, it was not disputed that the first defendants had overdrawn their current account with the plaintiffs in the amount claimed, but it was alleged that the plaintiffs had agreed to grant banking facilities to the first defendants up to $500,000 as evidenced by that amount stated in the guarantee exhibited, and that pursuant to that agreement, the first defendants had in April 1984 entered into two contracts for the purchases of timber from sellers in Indonesia under which the first defendants had paid deposits totalling $128,000 and under which the first defendants had undertaken to the sellers and intended to cause the plaintiffs to issue two letters of credit to pay for the timber. The first defendants further alleged that in breach of the contract for banking facilities, the plaintiffs wrongfully refused to open the letters of credit by reason of which the said deposits were forfeited by the sellers of the timber and that consequently the first defendants had suffered damages and losses. I need not describe the terms of the contracts for the purchases of timber save to make the general observation that copies of the relevant contemporaneous documents were exhibited which plainly established that the first defendants had a bona fide counterclaim against the plaintiffs in a sum not less than $128,000 which obviously would overtop the plaintiffs` claim of $47,712.80.

At the...