Chia Kim Huay v Saw Shu Mawa Min Min

• Jurisdiction: Singapore
• Judgment Date: 27 August 2012
• Date: 27 August 2012
• Docket Number: Suit No 704 of 2010 (Summonses Nos 5809 of 2011 and 135 of 2012)
• Court: High Court (Singapore)

Chia Kim Huay (litigation representative of the estate of Chua Chye Hee, deceased)

Plaintiff

and

Saw Shu Mawa Min Min and another

Defendant

[2012] SGHC 172

Chan Seng Onn J

Suit No 704 of 2010 (Summonses Nos 5809 of 2011 and 135 of 2012)

High Court

Civil Procedure—Offer to settle—Application of common law rules of contract to O 22A Rules of Court (Cap 322, R 5, 2006 Rev Ed)—Order 22A Rules of Court (Cap 322, R 5, 2006 Rev Ed)

Civil Procedure—Offer to settle—Offeror setting out breakdown of offer to settle in separate table—Separate table not in Form 33 Rules of Court (Cap 322, R 5, 2006 Rev Ed)—Whether separate table formed part of offer to settle—Order 22A r 1 Rules of Court (Cap 322, R 5, 2006 Rev Ed)

Civil Procedure—Service—Offeree serving acceptance to offer to settle by facsimile—Whether service by facsimile valid—Order 62 r 6 (3) Rules of Court (Cap 322, R 5, 2006 Rev Ed)

Civil Procedure—Service—Offeree serving acceptance to offer to settle by post—Whether service by post valid—Order 62 r 6 (1) (b)Rules of Court (Cap 322, R 5, 2006 Rev Ed)—Section 2 (5) Interpretation Act (Cap 1, 2002 Rev Ed)

Contract—Formation—Acceptance—Postal acceptance rule—Whether postal acceptance rule applied to service of acceptance to offer to settle made under O 22A Rules of Court (Cap 322, R 5, 2006 Rev Ed)—Order 22A Rules of Court (Cap 322, R 5, 2006 Rev Ed)

Contract—Offer—Termination—Offeree dying before accepting offer—Whether offer determined upon death of offeree—Whether offer personal to offeree—Section 10 Civil Law Act (Cap 43, 1999 Rev Ed)

On 15 April 2009, the plaintiff (‘Chua’) was involved in a motor accident with the first defendant (‘Saw’). Saw was at all material times an employee of the second defendant (‘GEA’). On 15 September 2010, Chua commenced Suit No 704 of 2010 against Saw and SEA. An interlocutory judgment on the issue of liability was subsequently entered by consent against Saw and GEA for 100%. Thereafter, GEA's insurer (‘Allianz’) stepped in to defend the suit.

On 9 March 2011, Allianz made an offer to settle to Chua at $352,316.08. On 21 March 2011, Chua responded by making an offer to settle at $594,954.60. On 17 June 2011, Allianz made a second offer to settle to Chua at $435,000 (‘the Offer’), being an intermediate figure between the previous offers to settle. On 23 August 2011, Chua made a second offer to settle at $600,000. All four offers to settle were made under O 22A of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) and did not contain other material terms other than the monetary figure the party making the offer was proposing.

On 27 August 2011 (Saturday), Chua's counsel purported to accept the Offer at $435,000 effecting service by facsimile and by post. The acceptance served by facsimile was received on the same day at 6.26 pm but was only seen by Allianz's counsel when it opened for business at 9.00 am on 29 August 2011 (Monday). In the meantime, Chua passed away at 11.06 am on 29 August 2011 (Monday). The acceptance served by post was received by Allianz's counsel on 31 August 2011 (Wednesday).

Chua's estate and Allianz disputed whether the Offer was validly accepted. On 23 December 2011, Chua's estate filed Summons No 5809 of 2011 praying for judgment to be entered in its favour on the terms of the Offer which it validly accepted. In response, Allianz filed Summons No 135 of 2012 seeking a declaration that the Offer had determined on Chua's death on 29 August 2011, and a further declaration that the Offer was not validly accepted before Chua's death.

Held, granting the application and refusing the declarations:

(1) The rationale behind the offer to settle regime under O 22A of the Rules of Court was to encourage the termination of litigation by agreement of the parties; more speedily and less expensively than by judgment of the court at the end of the trial. This rationale had to be kept in mind when considering the extent to which ordinary contractual principles applied to the O 22A regime: at [26] and [27].

(2) The offer to settle regime under O 22A could not be understood in a vacuum without reference to ordinary principles of contract law, such as concepts of offer and acceptance. However, being a statutory mechanism, O 22A modified the ordinary rules of contract law and imposed certain statutory restrictions, including formality requirements, on the parties should they choose to invoke O 22A: at [28].

(3) The O 22A mechanism had to be specifically invoked through the use of certain prescribed forms. Once O 22A is invoked, the common law rules of offer and acceptance were statutorily modified. Order 22A r 3 (2) mandated that offers to settle which did not specify a time for acceptance might only be withdrawn after 14 days by giving at least one day's prior notice of the intention to withdraw. Order 22A r 3 (3) required the notice of withdrawal to be in Form 34. Therefore, even after the party making the offer had given notice to withdraw the offer, the party who received the offer still had one day to accept the offer before it was withdrawn: at [29] to [32].

(4) Another departure from common law was that under O 22A r 6 (2), an offer to settle remained open for acceptance until it was withdrawn or when the court disposed of the matter in respect of which it was made, notwithstanding that it had been previously rejected or the other party had responded with a counter-offer. Order 22A r 6 (1) required an offer to settle to be accepted by serving an acceptance of offer in Form 35 on the party who made the offer: at [33] and [34].

(5) The acceptance served by facsimile on 27 August 2011 did not comply with O 62 r 6 (1) (c) because the defendant's solicitors stated in all its firm's letterheads that service of court documents by facsimile was not accepted. The parties did not agree on other modes of service pursuant to O 62 r 6 (1) (d). The acceptance was therefore not valid: at [38] and [39].

(6) The acceptance served by post was only received on 31 August 2011, after the plaintiff passed away on 29 August 2011. The validity of this acceptance depended on whether the common law postal acceptance rule applied to acceptances served under O 22A, which would deem service to be effected on 27 August 2011; and on whether the defendant's second offer to settle determined upon the plaintiff's death on 29 August 2011: at [40].

(7) The postal acceptance rule did not apply when accepting an offer to settle under O 22A by post. Order 22A r 6 (1) required an offer to be accepted by ‘serving’ an acceptance of offer in Form 35 on the party who made the offer. Service of documents by post was specifically dealt with under O 62 r 6 (1) (b) of the Rules of Court and s 2 (5) of the Interpretation Act (Cap 1, 2002 Rev Ed), which statutorily modified the common law postal acceptance rule. The acceptance served by post therefore took effect when it was physically received by the defendant on 31 August 2011: at [44] to [47].

(8) The validity of the acceptance served by post therefore depended on whether the defendant's second offer to settle determined upon the plaintiff's death on 29 August 2011. At common law, whether an offer determined upon the death of the offeree depended on whether the offer was personal to the offeree. Whether an offer was personal was a matter of construction of the offer. The exercise was not a technical one and had to be approached with a certain degree of common sense: at [48] to [53].

(9) The defendant's second offer to settle was not a personal offer. Section 10 (1) of the Civil Law Act (Cap 43, 1999 Rev Ed) stated that all causes of action vested in the deceased would survive for the benefit of his estate. A cause of action that survived the death of a plaintiff could not be considered personal since the action could be continued by the personal representatives of the deceased. If the cause of action could not be considered personal, neither could the offer to settle purporting to settle the surviving cause of action: at [54] and [55].

(10) Having not qualified its offer in express terms, the defendant was indirectly asking the court to imply a condition that the defendant's second offer to settle would determine upon the death of the plaintiff. Keeping in mind that the rationale of O 22A was to encourage settlement rather than prolong it, the court should be extremely slow to imply terms into offers to settle which were otherwise clearly worded and unambiguous: at [57].

(11) The table setting out the breakdown of the settlement figure of $435,000 was irrelevant because it was not in Form 33 and hence did not form part of the offer to settle. Even if the table had formed part of the offer to settle, it was irrelevant because the offer to settle could have been validly accepted as long as the plaintiff agreed with the final settlement sum, even if the plaintiff had disagreed with every single component in the table: at [58] and [59].

Data General (Canada) Ltd v Molnar Systems Group Inc (1991) 85 DLR (4 th) 392 (refd)

Singapore Airlines Ltd v Tan Shwu Leng [2001] 3 SLR (R) 439; [2001] 4 SLR 593 (refd)

Endurance 1, The [1998] 3 SLR (R) 970; [1999] 1 SLR 661 (refd)

Civil Law Act (Cap 43, 1999 Rev Ed) s 10 (consd) ;s 10 (1)

Interpretation Act (Cap 1, 2002 Rev Ed) s 2 (5) (consd)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 22A, O 62 r 6 (1) (b) , O 62 r 6 (3) (consd) ;O 22A r 1, O 22A r 3 (1) , O 22A r 3 (2) , O 22A r 3 (3) , O 22A r 6 (2) , O 22A r 6 (1) , O 22A r 9, O 62, O 62 r 6 (1) (c) , O 62 r 6 (1) (d)

Rules of Civil Procedure, RRO 1990, Reg 194 (Can) r 49

Paul Yap Tai San (Vision Law LLC) for the plaintiff

Niru Pillai (Global Law Alliance LLC) for the first and second defendants.

Chan Seng Onn J

Introduction

1 The purpose of the offer to settle mechanism prescribed under O 22A of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), which is derived from r 49 of the Rules of Civil Procedure...