Blenwel Agencies Pte Ltd v Tan Lee King

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 21 January 2008
• Neutral Citation: [2008] SGCA 3
• Date: 21 January 2008
• Subject Matter: Civil Procedure,Appeals,Applicant seeking leave to appeal against High Court decision refusing applicant leave to appeal against District Court decision,Final and conclusive nature of refusal of leave to appeal,Right,Leave,Courts and Jurisdiction,Jurisdiction-conferring provision a crucial prerequisite to bringing an appeal
• Docket Number: Originating Summons No 1539 of 2007
• Published date: 25 January 2008
• Defendant Counsel: Ng Yong Ern Raymond (Tan Lay Keng & Co)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Tan Beng Hui Carolyn and Au Thye Chuen (Tan & Au LLP)

21 January 2008

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court):

Introduction

1 Blenwel Agencies Pte Ltd (“the applicant”) originally came before this court seeking leave to appeal against the decision of the High Court judge (“the Judge”) in Originating Summons No 1230 of 2007 (“OS 1230/07”) refusing it leave to appeal against a decision of the District Court (see Blenwel Agencies Pte Ltd v Tan Lee King [2007] SGHC 181 (“the GD”)). However, before the hearing proper, the applicant sought leave from this court to discontinue the present originating summons (“OS 1539/07”). We granted the applicant such leave and ordered that the action be discontinued on condition that the applicant was not to make any further collateral attempts to pursue its claim against the respondent. We also ordered the applicant to pay the respondent’s costs (inclusive of disbursements) fixed at $5,000 on an indemnity basis. We now give our reasons for so ruling. In particular, we wish to highlight that the original prayer in OS 1539/07 for leave to appeal was misconceived and bound to fail. This should serve as a timely reminder to counsel to avoid bringing such hopeless applications in future.

Background and procedural history

2 The applicant (the plaintiff in the originating Magistrate Court’s suit) is an operator of car park facilities. The respondent (the defendant in the originating suit) had parked his car in a no-parking zone of a car park operated by the applicant, whereupon the latter clamped the wheel of the respondent’s car. The respondent drove away with the wheel clamp and thereby damaged it. The applicant sued him for a sum of $600 for damage to the wheel clamp.

3 After a series of court proceedings, the precise details of which are unnecessary for present purposes, the matter ultimately ended up being referred to the Primary Dispute Resolution Centre (“PDRC”) of the Subordinate Courts for mediation before a district judge (“the settlement judge”). The parties then agreed to resolve the matter in the following manner: the respondent was to pay the applicant the sum of $3,000 in full and final settlement of the latter’s claim in two equal instalments, with the first instalment to be paid by 1 February 2007 and the second, by 15 February 2007.

4 On 1 February 2007, the respondent attempted to make the first payment. However, that payment was not accepted by the applicant. It appeared to be because the applicant insisted on the respondent signing a joint press release, which the latter refused to do. Subsequently, on 8 February 2007, the parties returned to the PDRC to seek clarification of the settlement which they had entered into. The settlement judge confirmed that the respondent was not required to sign the joint press release. At this juncture, the respondent once again tendered payment, but to no avail. The applicant’s version of the facts differed slightly in this regard. According to the applicant, the respondent was told to make the payment at its solicitors’ office – and not at the PDRC – and this, the respondent did not do. For present purposes, however, this difference is immaterial.

5 The applicant then obtained, ex parte, a default judgment for $5,000, being the sum of $3,000 plus $2,000 in costs. The respondent in turn applied to set aside this default judgment. His application failed before a deputy registrar, but succeeded before a district judge (“the DJ”), who set aside the default judgment with costs fixed at $1,500. It was this decision of the DJ which the applicant was dissatisfied with.

6 After the DJ had set aside the default judgment in the respondent’s favour, the respondent made payment of $1,500 to the applicant, being the settlement sum of $3,000 less the $1,500 in costs awarded in his favour. The applicant accepted payment of the said sum as part settlement of its various claims against the respondent, but reserved its right to appeal against the DJ’s decision.

7 Dissatisfied with the DJ’s decision, the applicant sought leave from the Subordinate Courts to appeal to the High Court against that decision pursuant to s 21(1) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“the Act”) read with O 55C r 2(1)(a) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”). Leave to appeal was, however, refused by the DJ.

8 The applicant did not let the matter rest there. It decided to take a second bite of the cherry by making an application to the High Court via OS 1230/07 for leave to appeal under s 21(1) of the Act read with O 55C r 2(1)(b) of the Rules. This application was heard by the Judge on 27 September 2007. The Judge was of the view that the DJ’s decision should not be overturned and that the matter should not be allowed to proceed any further. Accordingly, the application in OS 1230/07 was dismissed (see the GD ([1] supra) at [5]).

9 Perhaps sensing that it had come to the end of the legal road, the applicant then tried to rely on what it thought was an alternative route that would allow it to proceed further. Relying on s 34(2)(a) of the Act read with O 56 r 3(1) of the Rules, it purported to make a further attempt to appeal against the Judge’s decision in OS 1230/07 by filing Originating Summons No 1484 of 2007 (“OS 1484/07”), dated 5 October 2007, in the High Court for leave to appeal to the Court of Appeal against that decision. OS 1484/07 was placed before the Judge. After hearing the applicant, who was represented by Ms Carolyn Tan (“Ms Tan”), on 9 October 2007, the Judge dismissed OS 1484/07. He was of the view that there could be no leave to appeal against an order refusing leave to appeal as such a rule was “necessary to ensure finality in matters where the legislature ha[d] deemed it fit to prevent excessive litigation” (see the GD at [6]).

10 Seemingly undeterred, the applicant persisted by filing OS 1539/07 to seek leave to appeal to the Court of Appeal against the Judge’s decision in OS 1230/07. The application was fixed for hearing on 12 November 2007.

11 That, however, was not the end of the matter. Just two working days before the date of the hearing, Ms Tan wrote to the Registrar of the Supreme Court giving notice of the applicant’s decision to withdraw OS 1539/07. When the respondent came to know of this, he informed the court through his solicitors that he wished to be heard on the issue of costs and disbursements. In short, he was unwilling to consent to a withdrawal of OS 1539/07 without more. The legal effect of this was that the applicant needed to obtain the leave of the court to withdraw the application; the practical effect lay, quite clearly, in the issue of costs.

The statutory provisions

12 For ease of reference, it will be helpful to set out at this juncture the relevant provisions governing applications for leave to appeal to the High Court from decisions of the Subordinate Courts. Section 21 of the Act reads as follows:

Appeals from District and Magistrates’ Courts

21.—(1) Subject to the provisions of this Act or any other written law, an appeal shall lie to the High Court from a decision of a District Court or Magistrate’s Court … in any civil cause or matter where the amount in dispute or the value of the subject-matter exceeds $50,000 … or with the leave of a District Court, a Magistrate’s Court or the High Court if under that amount.

The corresponding provisions in the Rules, namely, O 55C r 2 and O 55D r 4, read as follows:

Leave to appeal (O. 55C, r. 2)

2.—(1) A party applying for leave under section 21(1) of the Supreme Court of Judicature Act (Chapter 322) to appeal against any judgment, order or decision of a District Judge in Chambers … must file his application —

(a) to a District Judge in Chambers within 7 days of the judgment, order or decision; and

(b) in the event leave is refused by the District Judge, to the High Court within 7 days of the refusal.

...

Time for appealing (O. 55D, r. 4)

4. …

(2) A party applying for leave under section 21(1) of the Supreme Court of Judicature Act (Chapter 322) to appeal against an order made, or a judgment given, by a District Court must file his application —

(a) to a District Court within 7 days of the judgment or order; and

(b) in the event leave is refused by the District Court, to the High Court within 7 days of the refusal.

(3) A party applying for leave under section 21(1) of the...