Chiltern Park Development Pte Ltd v Ong Pang Wee and Others

JudgeTan May Tee
Judgment Date12 June 2003
Neutral Citation[2003] SGMC 20
Citation[2003] SGMC 20
CourtMagistrates' Court (Singapore)
Published date02 October 2003
Plaintiff CounselHo Keng Hoong (Khattar Wong & Partners)
Defendant CounselRoderick Martin (Martin & Partners),Cheong Tuck Meng (Martin & Partners)
Subject MatterCivil Procedure,Transfer of action from the Magistrate's Court to District Court – Construction of O 89 r 4 Rules of Court and s 53 Subordinate Court Act (Cap 321)


1 This application arises out of a failed attempt on the part of the defendants to transfer the proceedings in this suit to the High Court. The factual background is this: the plaintiffs are the developers of the condominium known as Chiltern Park. The defendants bought a unit in the condominium from the plaintiffs. In the written judgments of the High Court and the Court of Appeal on a related proceeding, the plaintiffs were referred to as “the developers” and the defendants as “the purchasers”. I shall, for convenience, adopt the same references in these grounds.

2 In July 2000, the developers filed a writ in the Magistrate’s Court to claim maintenance fees in the sum of $13,443.47 allegedly owing by the purchasers for the period April 1996 to June 1999. The purchasers filed a defence and counterclaim for damages on account of defects and for loss of use or loss of rent. By May 2002, they quantified their counterclaim at $353,900 which goes beyond even the jurisdiction of the District Court. The purchasers then took out an application in the High Court by way of Originating Summons No. 687 of 2002 to transfer the entire suit to the High Court. The application was dismissed by the learned Judicial Commissioner Woo Bih Li (as he then was). On appeal to the Court of Appeal in Civil Appeal No. 72 of 2002, the High Court’s decision was affirmed by a majority of the coram. See the Court of Appeal judgment in [2003] SGCA 9.

3 The High Court dismissed the earlier application to transfer on the ground that the relevant provisions of the Supreme Court of Judicature Act (Cap 322) (hereinafter “SCJA”), the Subordinate Courts Act (Cap 321) (hereinafter “SCA”) and the Rules of Court precluded a transfer from the Magistrate’s Court to the High Court. The purchasers canvassed two issues before the Court of Appeal; the first being whether the High Court’s powers under the SCJA to transfer proceedings are curtailed by the SCA; and the second issue being whether the SCA provisions for transfer to the High Court, specifically section 24 SCA, is limited only to proceedings commenced in the District Courts. The majority of the Court of Appeal decided both issues against the purchasers. The dissension in the Court of Appeal appears to have arisen with regard to the second issue – and specifically with regard to the construction of section 52 of the SCA which sets out the civil jurisdiction of the Magistrate’s Court. Chao Hick Tin J.A. was persuaded to agree with counsel for the purchasers that section 24 of the SCA could be imported into the Magistrate’s Courts’ jurisdiction by virtue of section 52(2)[1]. Hence by the applicable provisions of the SCJA[2] and the SCA[3] and Order 89 rules 1 and 2 of the Rules of Court, the High Court had the power to transfer an action in the Magistrate’s Court to itself. The learned Judge of Appeal in the concluding paragraph of his dissenting judgment stated as follows:

“… if this appeal is not allowed what it means is that more time and costs would have to be incurred to enable the case to come up to the High Court. Two steps would have to be taken instead of one. First, a party would have to apply under O 89 r 4 to have the case transferred from the Magistrate’s Court to the District Court. Then he would have to apply again to have the case transferred from the District Court to the High Court. …”

4 By the present application, the purchasers appear to have taken the cue from the dissenting judgment of the Court of Appeal. They want the present action transferred to the District Court being the first of the two steps cited by Chao J.A. in order to bring the Magistrate’s Court suit to the High Court. The purchasers’ application for transfer to the District Court is for the sole purpose thereafter of making a subsequent application to bring it to the High Court. I adjourned the matter for consideration after hearing the submissions of counsel.

Stare decisis and the High Court decision in Tan Kok Ing’s case

5 Shortly after the High Court rendered its decision in Originating Summons 687 of 2002, the learned Judicial Commissioner Woo Bih Li dismissed an appeal against a district judge’s decision refusing an application to transfer an action commenced in the Magistrate’s Court to the District Court. This was in MC Suit No. 12116 of 2000, Tan Kok Ing v Tan Swee Meng and 3 Ors, Unreported. In this case, the plaintiff had sued several defendants for damages for personal injuries suffered as a result of a motor accident. His claim was filed in the Magistrate’s Court. Subsequently, he filed an application to transfer the action to the District Court on the ground that after commencement of the action, it became apparent that his injuries were more severe than what he had earlier thought and his claim for damages would now exceed the Magistrate’s Court limit. His application was dismissed at first instance by a deputy registrar. His appeal to the district judge in chambers was dismissed and a further appeal was made to the High Court.

6 In the arguments before the High Court, the plaintiff had relied on O 89 r 4 of the Rules of Court. As this is the same provision relied on by Mr Martin, counsel for the purchasers, I shall set it out in full:

Transfer of proceedings within the Subordinate Courts (O. 89, r.4)

4. (1) Where a Subordinate Court is satisfied that any proceedings in that Court ought to be tried in some other Subordinate Court, it may order the proceedings to be transferred to the other Court.

(2) Any order under paragraph (1) may be made by the Court on its own motion or on the application by summons of any party to the proceedings.

(3) Where an order under paragraph (1) is made by the Court on its own motion, the Registrar must give notice of the transfer to every party to the proceedings.’

7 It was argued in Tan Kok Ing’s case that O 89 r 4 would enable the Magistrate’s Court to effect a transfer without having to satisfy section 53 of the SCA. Section 53 which is also pertinent to the present case before me provides that:

‘Transfer from Magistrate’s Courts to District Courts

53. A Magistrate’s Court may, either of its own motion or on the application of a party to an action, transfer the action to a District Court on the ground that some important question of law or fact is likely to arise.’

8. In his written grounds, the learned Judicial Commissioner stated that in the light of section 53, which is the relevant provision, there was no inherent jurisdiction in the Magistrate’s Court to transfer an action commenced in the Magistrate’s Court to the District Court. Any such transfer must meet the requirement in section 53, which is that some important question of law or fact is likely to arise, otherwise section 53 would be otiose. In relation to O 89 r 4, His Honour stated as follows:

‘I was of the view that O 89 r 4 is not a provision on procedure only. However I agreed that it should not be read in isolation. If rule 4 were interpreted to mean that any Subordinate Court has an unfettered discretion to order a transfer of proceedings from a Magistrate’s Court to a District Court so long as the court ordering the transfer is satisfied that the transfer ought to be effected, then s 53 would be otiose. It will then effectively override s 53. In my view, subsidiary legislation cannot override primary legislation and rule 4 must be read subject to s 53.’

9 Mr Ho, counsel for the developer, submitted that the High Court decision in Tan Kok Ing is the authoritative view with regard to transfer of an action from the Magistrate’s Court to a District Court, and it has not been overruled by the Court of Appeal in their judgments in Civil Appeal 72 of 2002. Consequently O 89 r 4 has to be read in conjunction with section 53 SCA and any transfer to a District Court from a Magistrate’s Court must satisfy the criterion of there being an important question of law or fact.

10 I accept the developers’ argument that Tan Kok Ing is the authority governing applications to transfer an action from the Magistrate’s Court to the District Court and I am bound by the doctrine of stare decisis to abide by it. Mr Martin sought to argue firstly, that the decision by the learned Judicial Commissioner was per incuriam as the court had not been referred to the correct Malaysian provisions governing transfer of proceedings. Having looked at the Malaysian provisions, I do not think they would have made a difference to the learned Judicial Commissioner’s reasoning as appears from the other paragraphs in his grounds. In any event; it is a settled principle that the Subordinate Courts being a court having inferior jurisdiction cannot invoke the per incuriam rule against the higher court.

11 Mr Martin’s second challenge against Tan Kok Ing is that it has been effectively overruled by the Court of Appeal. This submission has to be tested by careful examination of both the majority and dissenting judgments. The relevant passage of the majority judgment is set out below:

30. Finally, we would like to refer to O 89 r 11 of the Rules and the role of the Rules Committee. The Rules Committee constituted under s 80(3) of the SCJA has the power to make Rules of Court regulating and prescribing the procedure and practice to be followed in the High Court and the Court of Appeal. Section 80(2) sets out specific purposes for which Rules of Court may be made. By sub-paragraph (d) of s 80(2) one of these purposes is to prescribe ‘the procedure in connection with the transfer of any proceedings from any subordinate court to the High Court’. The restrictive wording of this sub-paragraph must be compared with the expansive wording of s 69(3) of the SCA.

31. Read with s 69(1), s...

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