Chinese Chamber Realty Pte Ltd and Others v Samsung Corp

• Jurisdiction: Singapore
• Judge: S Rajendran J
• Judgment Date: 15 August 2003
• Neutral Citation: [2003] SGHC 189
• Date: 27 August 2003
• Subject Matter: Civil Procedure,Order made granting leave to file summary judgment application without Defence being filed -Whether order proper,Inherent,Appropriate order to be made in circumstances,Whether inherent jurisdiction should be exercised where matter of procedure covered by Rules of Court,Jurisdiction,Rules of court,Order 14 r 1 of the Rules of Court (Cap 322, R 5, 1997 Rev Ed) provide for summary judgment application to be made only after Defence filed
• Docket Number: Suit No 428 of 2003 (Registrar's
• Published date: 03 October 2003
• Defendant Counsel: Latiff Ibrahim and Yeo Khung Chye (Harry Elias Partnership)
• Court: High Court (Singapore)
• Plaintiff Counsel: Koh Kok Wah, Gerald Ng and Daniel Chia (Wong & Leow LLC)

1 Until late 2002, a plaintiff could, upon the defendant entering appearance, apply under O 14 r 1 of the Rules of Court for summary judgment of part or whole of his claim against that defendant: O 14 r 1 did not, at that time, require the plaintiff to wait for the defence to be entered before making an application for summary judgment. This situation changed on 1 December 2002 when certain amendments to O 14 came into effect. The amended O 14 r 1 reads as follows:

Where a statement of claim has been served on a defendant and that defendant has served a defence to the statement of claim, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.

As a result of the amendment (indicated in italics above) an application for summary judgment under O 14 may be made only after the defendant “has served a defence to the statement of claim”.

2 This amendment brought in its wake difficulties in relation to obtaining summary judgments under O 14 for contracts – particularly building contracts – which provided for disputes to be referred to arbitration. Despite the existence of such arbitration clauses the practice had developed for a plaintiff – such as a contractor or sub-contractor who had not been paid progress payments due under an Architect’s Certificate – to commence proceedings in the civil courts in order to obtain the benefit of a speedy judgment under O14. When such an action was commenced, the defendant – if he wished the matter to be heard by the arbitrator – would apply for a stay of proceedings on the grounds that the parties had contractually agreed to arbitration and that arbitration was the more appropriate mode for resolving the disputes. It was the practice – pre-December 2002 – for the O 14 application and the stay application to be heard together.

3 Under the amended O 14 provisions, however, the plaintiff would have to wait for the defendant to file his defence before applying for O 14 judgment but a defendant who wanted the dispute resolved by arbitration would not file his defence for fear that by so doing he would be deemed to have taken a step in the proceedings and thereby waived his rights to arbitration. To avoid that consequence, the defendant – as happened in this case – would have to apply for leave that he be allowed to file his defence only after the application for stay had been dealt with.

4 If the court granted the defendant’s application for leave to file the defence after the stay application had been dealt with, the plaintiff would not be able to apply for summary judgment under the amended O 14. The result would be that the stay application would be heard without the O 14 application being heard at the same time. In those circumstances, if the stay application were granted, the plaintiff would be precluded from making an O 14 application. It is only if the stay application was refused that the plaintiff, after the defendant files his defence, can proceed to apply for O 14 judgment.

5 That the courts would grant O 14 judgment even in cases where parties had contractually agreed to refer disputes to arbitration is clear from a number of decisions of the Singapore courts. I need refer to only one of these cases, namely, Aoki Corp v Lippoland (S) Pte Ltd [1995] 2 SLR 609 at 619 – a case which, as here, also involved the SIA form of building contracts – where Warren Khoo J stated the rationale for so doing as follows:

Clause 31.11 of the SIA conditions of contract provide, so far as relevant for present purposes, that no certificate of the architect shall be final and binding, but in the absence of fraud or improper pressure or interference by either party, full effect shall be given to all certificates of the architect, whether for payment or otherwise, until final judgment or award.

…

The object of these provisions of the contract is that certificates issued in the ordinary course by the architect are to be honoured, and that any challenge in relation to them should be referred for arbitration, although, as can be seen in the Tropicon case, where the circumstances are such that the legality or propriety of a certificate can be decided by reference to the terms of the contract and the circumstances in which it was issued, the court will not hesitate to deal with the matter even in summary judgement proceedings.

The case of Tropicon referred to by Khoo J was a reference to the decision in Lojan Properties Pte Ltd v Tropicon Contractors Pte Ltd [1991] SLR 80 where the Court of Appeal took a similar view.

6 The plaintiffs in the present case, Chinese Chamber Realty Pte Ltd, China Square Holdings Pte Ltd and Church Street Properties Pte Ltd (“CCR”), were developers of a 30-storey office building and their claim against the defendants, Samsung Corporation (“Samsung”), who were the main contractors for the development, was under a Delay Certificate issued by the Project Architect. In their Statement of Claim, CCR expressly pleaded that they would be relying on the temporary finality of the Delay Certificate under cll 31 and 37 of the SIA conditions of contract (that applied in this case) and stated that they would be applying for summary judgment in respect of the amount due to them thereunder.

7 Samsung entered an appearance to the writ and then applied to have the proceedings stayed for the dispute to be referred to arbitration. The defence was not filed on the grounds that filing the defence would amount to taking a step in the proceedings. Samsung’s application for stay came up for hearing before Ms Thian Yee Sze, Assistant Registrar, on 28 May 2003. Because the defence had not been filed CCR was unable to apply for summary judgment under O 14 r 1.

8 At the hearing before the Asst Registrar, Samsung orally applied for an order that it be granted extension of time to file its defence after the stay application and any appeal therefrom had been determined. As noted above, if that order was granted, the O 14 application could not be heard simultaneously with the stay application. That being so, if the stay application was granted, CCR would not under the amended O 14 be able to make the O 14 application at all as the dispute would be referred to arbitration. CCR would be able to make an O 14 application only if the stay application was refused and Samsung then filed its defence. Even in such event, CCR – vis-à-vis its position prior to the O 14 amendment – would still suffer prejudice in that it would be unable to apply for O 14 judgment immediately but would have to wait until Samsung filed its defence after any appeal from the refusal to grant a stay order had been disposed of.

9 To overcome the difficulty created by the amended O 14, CCR applied orally to the Asst Registrar for leave to file their application for summary judgment without the defence having been filed and for the O 14 application and the stay application to be heard together. Samsung objected on the grounds that such a course of action would be a violation of the clear provisions of the amended O 14.

10 The Asst Registrar appreciated the difficulty that CCR found itself in. She also appreciated the difficulty that Samsung would encounter if it filed its defence. She resolved this impasse by –

(a) giving CCR leave to file an O 14 r 1 application without the defence having been filed;

(b) allowing Samsung’s application that it need not file its defence until after the resolution of the stay application;

(c) ordering that all affidavits filed by Samsung in the O 14 application were not to be considered as steps in the...