Chua Swee Ho v Stratech Aerospace Systems Pte Ltd

• Jurisdiction: Singapore
• Judge: Vince Gui
• Judgment Date: 07 August 2020
• Neutral Citation: [2020] SGDC 177
• Court: District Court (Singapore)
• Docket Number: District Court Suit No. 3199 of 2019, Summons No. 1514 of 2020
• Published date: 18 August 2020
• Year: 2020
• Hearing Date: 14 July 2020
• Plaintiff Counsel: Lee Ee Yang and Douglas Pang Wei Jie (Covenant Chambers LLC)
• Defendant Counsel: Chung Ting Fai and Ong Xiang Ting, Charmian (Chung Ting Fai & Co)
• Subject Matter: Civil Procedure,Appeals,Notice,Leave to file notice of appeal out of time,Extension of time,Application to extend time to furnish security for claim
• Citation: [2020] SGDC 177

District Judge Vince Gui: Introduction

This application concerns an earlier application made by the Defendant to set aside a default judgment. At first instance, the learned Deputy Registrar (“DR”) ordered that the default judgment be set aside, on the condition that the Defendant furnishes security for the claim in the sum of $30,000 within 21 days from the date of the said order (the “Order”). Dissatisfied with the condition imposed by the learned DR, the Defendant wishes to file an appeal but failed to do so within the 14-day timeframe prescribed under O 55B r 1 of the Rules of Court (Cap 322, 2014 Rev Ed) (“Rules of Court”). Through this application the Defendant is asking for an extension of time to file the notice of appeal as well an extension of time to furnish the security ordered by the learned DR. In this judgment, I address the two-fold application in sequence.

Extension of time to file notice of appeal

The principles governing an application for extension of time to file a notice of appeal pursuant to O 3 r 4 of the Rules of Court are well-established. Four factors fall into consideration: (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if time for appeal were extended; and (d) the prejudice caused to the would-be respondent if an extension of time were granted (Lee Hsien Loong v Singapore Democratic Party and others and another suit [2008] 1 SLR(R) 757 (“Lee Hsien Loong”)). When assessing these factors, the court is guided by the overriding consideration that the Rules of Court must prima facie be obeyed, with reasonable diligence being exercised, and also the need for finality being a paramount consideration (Anwar Siraj and another v Ting Kang Chung John [2010] 1 SLR 1026 (“Anwar Siraj”) at [30]). The need for finality demands that a more stringent approach be taken towards applications to appeal out of time as compared to applications for extension of time for other matters (Lee Hsien Loong at [33]-[34]).

The Order was made on 24 March 2020. The 14-day timeframe would have given the Defendant until 7 April 2020 to file a notice of appeal. As it turned out, the Defendant did not comply with the deadline. On 24 April 2020, it filed the present application for leave to file the notice of appeal out of time.

Length of delay

The first question is whether the length of delay can be regarded as “de minimis”. A de minimis delay may be excused without examining the reasons for the delay. As the Court of Appeal held in Lee Hsien Loong at [21]: 21 In so far as the first two factors are concerned, it would generally be the case that an extremely short delay might be excused without the need for the court to inquire at length into the reasons for that delay. If the delay is de minimis, the court may not need to conduct such an inquiry at all. However, as each case generally differs on its facts from other cases, there may be exceptions to the general statement of principle just enunciated. 22 If the delay is not merely de minimis, the court must examine the reasons for such delay. A mere assertion that there has been an oversight is obviously insufficient and, indeed, could lead to an abuse of process. …

In my view, what the Court of Appeal in Lee Hsien Loong had in mind was perhaps a 1 or 2 days’ delay in an ordinary case. In the present case, the delay of 17 days is almost ten-fold of that, and can hardly be considered de minimis. Looking at the matter another way, the Defendant took more than double the amount of time prescribed under the Rules of Court to file the present application. To put things in context, the High Court in Management Corporation Strata Title Plan No 2911 v Tham Keng Mun and others [2011] 1 SLR 1263 found that a 9-day delay was not short enough to be considered de minimis. A fortiori, a 17-day delay cannot pass muster without scrutinising the reasons for the delay, and it is to this that I now turn.

Reasons for the delay

The Defendant explained that it “decided to change solicitors sometime on or about the start of April 2020” and that the Covid-19 situation made it “difficult for the Defendant to source around for a new lawyer”.¹ The Defendant claims that by the time the new solicitors took over on 9 April 2020, the deadline had lapsed.² The glaring problem with this explanation is the Defendant’s failure to address why the appeal was not filed by its former solicitors. As at the deadline of 7 April 2020, the Defendant was still represented by its former solicitors and could have instructed them to file the appeal. The preparation and filing of a notice of appeal is after all an administrative act that can be done with relative ease. The actual hearing of the appeal, which is understandably more substantive, can be left to the new solicitors to argue.

The problem is compounded by the fact that the Defendant’s former solicitors were still filing papers for the Defendant right before the expiry of the appeal deadline. Just a day before on 6 April 2020, the Defendant’s former solicitors filed a detailed response to the Plaintiff’s request for further arguments before the learned DR, which suggests that they were still in the course of taking instructions from the Defendant. That being the case, the Defendant could have instructed their former solicitors to file a notice of appeal there and then, if they had the intention to do so. Even if they were unsure as to whether they wanted to appeal, they could have filed a notice of appeal to stop the clock from running. As the Court of Appeal in Lee Hsien Loong explained at [35]: 35 The present system is eminently just and fair. Indeed, if the losing party is unsure whether or not to appeal against the decision, it can always file its notice of appeal first. Such notice can later be withdrawn if it is so desired. Alternatively, the appeal can be allowed to lapse. This being the case, it is clear that if the losing party drags its heels or is otherwise lackadaisical about its right to appeal, then it cannot legitimately ask the court for an extension of time to appeal. This is logical, commonsensical as well as (above all) just and fair. …

The Plaintiff had raised the same point in her reply affidavit, alleging that the Defendant could have asked its former solicitors to file a notice of appeal within time.³ This allegation went unanswered in the Defendant’s final reply affidavit. In these circumstances, one can only infer that the Defendant knew full well that the deadline was nearing and knowingly allowed the deadline to lapse.

As for the delay after 7 April 2020, the Defendant claims that the onset of the “Circuit Breaker” measures implemented by the Singapore Government to combat the Covid-19 pandemic (which took effect on 7 April 2020) made it “harder for the Defendants and [the new solicitors] to communicate and be provided with full and proper instructions”.⁴ While the elevated physical distancing measures implemented to contain the Covid-19 outbreak have undoubtedly upended business operations, technology has empowered law firms to continue functioning to varying degrees in the digital space. This was made possible because not every type of instruction and legal advice necessitates a physical meeting. Instructions and legal advice come in various stripes and forms, and certain forms of instructions can in ordinary circumstances be conveyed remotely. If the Defendant could have conveyed its instructions to appeal remotely, it is difficult to understand how the Circuit Breaker would have made it any more difficult to pursue the appeal. The onus is on the Defendant, as the applicant, to condescend upon particulars of the alleged difficulty in instructing its solicitors to file a notice of appeal. Short of a credible explanation, one can only assume it was open to the Defendant to instruct its new solicitors via remote communication channels. As the Plaintiff put it bluntly in her reply affidavit, “I do not see why [the Defendant] cannot adequately give instructions to [the new solicitors] by telephone call, e-mail or video conferencing”.⁵ Again, this query went unanswered in the Defendant’s final reply affidavit. The Defendant’s silence is telling. Indeed, a perusal of the affidavits filed in this action revealed that the Defendant’s representatives had no difficulty communicating via email and Whatsapp, having done so in the course of the Defendant’s business operations.⁶ In any event, there is the traditional option of a phone call. In fact, based on the case records, the Defendant’s new solicitors had filed several papers electronically during the Circuit Breaker, presumably on the back of the Defendant’s instructions. A Notice of Change of Solicitors was filed on 9 April 2020. Further filings requesting for the learned DR’s Grounds of Decision and Notes of Evidence were made on 14 and 22 April 2020. If the Defendant was able to give instructions to file these papers, there is no reason why the Defendant could not have instructed them to file a notice of appeal on or shortly after their new solicitors took over the matter on 9 April 2020.

The Defendant’s explanation is particularly unconvincing in light of the fact that a notice of appeal is not a document that requires extensive input from the client. The essential details required, such as the name of the DR and the date and terms of the Order, would have been readily available on the eLitigation platform, without the new solicitors having to obtain further input from the Defendant. Notably, the standard form of a notice of appeal does not even require the applicant to provide any grounds of the appeal (see Form 112 of the Rules of Court). If the Defendant were serious about appealing the Order, one would have expected the Defendant, having known that the deadline had lapsed by then, to instruct the new solicitors to promptly file a notice of appeal on 9 April 2020,...