BEP Akitek (Pte) v Pontiac Hotel Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 29 November 1990
• Date: 29 November 1990
• Docket Number: Suit No 5326 of 1983
• Court: High Court (Singapore)

BEP Akitek (Pte)

Plaintiff

and

Pontiac Hotel Pte Ltd

Defendant

[1990] SGHC 97

M Karthigesu J

Suit No 5326 of 1983

High Court

Civil Procedure–Pleadings–Amendments–Amendment to counterclaim–New claim pleaded in amendment statute-barred if ordered to commence from date on which application made–Whether court had discretion to order such amendment to become effective only from date on which application made–Order 20 rr 5 (1), 5 (2) and 5 (5) The Rules of the Supreme Court 1970–Section 31 Limitation Act (Cap 163, 1985 Rev Ed)

The plaintiff, describing itself as consultant architects for the defendant's project, claimed under an agreement contained in or evidenced by the defendant's letter to the plaintiff dated 17 May 1978 the balance of its professional fees in the sum of $415,893 by a specially endorsed writ of summons issued on 22 October 1983. Liability for $47,200 was admitted by the defendant and leave was given to the plaintiff on 19 March 1984 to enter judgment for that sum and interest, but execution was stayed pending the trial of the defendant's counterclaim. On 4 April 1984, the defendant delivered its defence and counterclaim.

By an application in chambers before the Registrar dated 25 October 1989, the defendant applied to amend its defence and counterclaim, firstly, by withdrawing its admission that the $47,200 was due and payable to the plaintiff and by pleading by way of a new defence that the plaintiff was not “registered architects” within the meaning of the Architects Act (Cap 12) and was thus prohibited by law from claiming or recovering fees or remuneration for architectural services rendered by the plaintiff to the defendant. Secondly, by pleading a new claim by way of a counterclaim for the return of the sum of $1,912,800 as money had and received by the plaintiff for the use of the defendant on the ground that the sum was paid in pursuant of an ineffective and/or illegal agreement. The assistant registrar who heard the application gave leave to the defendant to amend its defence and counterclaim in the manner sought, and ordered that the amendments take effect from 25 October 1989. This resulted in the new claim being statute-barred. The defendant appealed against the part of the assistant registrar's order that the amendments should take effect from 25 October 1989.

Held, allowing the appeal:

The court did not have discretion when a new claim which was otherwise statute-barred was pleaded by way of an amendment to a counterclaim to order that it took effect from a date other than the date of commencement of the original action. Section 31 of the Limitation Act (Cap 163, 1985 Rev Ed) provided that a counterclaim should be deemed to be a separate action and to have been commenced on the same date as the action in which the counterclaim was pleaded. The assistant registrar, in ordering the defendant's amendment to the counterclaim to take effect from 25 October 1989, exercised a discretion he did not have: at [10], [12] and [22].

Brickfield Properties Ltd v Newton [1971] 1 WLR 862; [1971] 3 All ER 328 (refd)

Chatsworth Investments Ltd v Cussins (Contractors) Ltd [1969] 1 WLR 1; [1969] 1 All ER 143 (refd)

Ketteman v Hansel Properties Ltd [1987] AC 189; [1988] 1 All ER 38 (distd)

Liff v Peasley [1980] 1 WLR 781; [1980] 1 All ER 623 (refd)

Liptons Cash Registers & Business Equipment Ltd v Hugin (GB) Ltd [1982] 1 All ER 595 (distd)

Liverpool Roman Catholic Archdiocesan Trustees Inc v Gibberd (1987) 7 Con LR 113 (distd)

Limitation Act (Cap 163,1985Rev Ed)s 31 (consd)

Rules of the Supreme Court 1970, TheO 20r 5 (consd)

Limitation Act1939 (c 21) (UK) s 28

Limitation Act1980 (c 58) (UK)ss 35 (1),35 (2)

Rules of the Supreme Court (UK) O 20r 5

Tang Khin Wai (Lee & Lee) for the appellant

Jimmy Yap (Donaldson & Burkinshaw) for the respondent.

Judgment reserved.

M Karthigesu J

1 This appeal raises an interesting and not unimportant procedural question. It is whether the granting of leave to amend a counterclaim, by raising a new...