Civil Procedure

• Author: JEFFREY PINSLER LLB (Liverpool), LLM (Cantab), Barrister (MT), Advocate & Solicitor (Singapore), Professor, Faculty of Law, National University of Singapore CAVINDER BULL BA(Hons)(Oxon), LLM (Harv), Barrister (GI), Attorney-at-Law (NY State), Advocate & Solicitor (Singapore)
• Citation: (2000) 1 SAL Ann Rev 56
• Date: 01 December 2000
• Published date: 01 December 2000

Application of the Rules of Court

In Tohru Motobayashi v Official Receiver & Anor[2000] 4 SLR 529, the Court of Appeal, inter alia, reversed the ruling of the High Court (Originating Summons 210/2000, unreported judgment dated 22.6.2000) that the Rules of Court (1997 Ed) may apply to proceedings relating to winding up of companies as the winding up rules are silent on the matter. The Court of Appeal based its view on the direction in Ord 1, r 2(4) that the Rules of Court do not apply to proceedings relating to the winding up of companies. The Rules of Court could only apply to such proceedings if specifically extended (pursuant to Ord 1, r 2(5)) by a rule in the Companies (Winding Up) Rules. Accordingly, Ord 15 r 6(2)(b)(ii) (one of the provisions which governs the procedure for joinder of parties) did not apply to the circumstances of the case. The Court of Appeal also considered whether joinder, had it been possible, would have been an abuse of process in the circumstances of the case and questions of estoppel arising from re-litigation.

Originating processes

The requirements of Ord 7, r 3(1) that the originating summons must contain “a statement of the questions … or … a concise statement of the relief or remedy claimed … with sufficient particulars” was examined by the Court of Appeal in Kitnasamy s/o Marudapan v Nagatheran s/o Manogar & Anor[2000] 2 SLR 598. The court found that these conditions had been complied with and that the High Court had been wrong to conclude otherwise in the context of a claim pursuant to s 216 of the Companies Act (Cap 50, 1994 Ed).

Continuation of proceedings as if cause or matter begun by writ

In Tan Yeow Khoon v Tan Yeow Tat & Anor (No 1)[2000] 3 SLR 341, the plaintiffs and defendants in both originating summonses were siblings. The plaintiffs were the two older brothers whilst the defendants were the younger brother and sister respectively. All four were shareholders

in three family-owned companies, with the defendants owning the minority share. A dispute arose involving one of the companies which led to a deterioration in the relationship between the relatives. The main substantive issue was whether a letter constituted a binding and enforceable agreement between the parties. The plaintiffs contended that it did and sought specific performance accordingly. The defendants contended that the terms of the letter were subject to contract and did not evidence a final and conclusive agreement. A preliminary point was raised as to whether the proceedings should have been converted into a writ action and whether the court should hear oral evidence from certain witnesses. The court concluded that as the matter involved “a plain case of construction”, the proceedings should not be continued as if they had been begun by writ.

Unless orders

Where an unless order is made “by consent” and a default judgment is entered automatically on non-compliance with that order, all that the court needs to determine is whether the party concerned has complied with the terms of the unless order. If he has not, then the action is dismissed without further order. If the opposing party extracts the order, then it is perfected. Being an order made by consent of the parties, the parties are bound by it. In such a situation it is only if the unless order itself is set aside that the party in default would be able to avoid the default judgment. See Wiltopps (Asia) Lid v Drew & Napier & Anor[2000] 3 SLR 244. The learned judge added (at 254):

“[A] consent order of this nature can only be set aside on grounds that would justify the setting aside of a contract. The consent order records an agreement supported by consideration and I cannot see any ground for applying different rules to it. Furthermore, to hold otherwise would dilute the utility of such consent orders and parties would take their undertakings less seriously.”

Also see Changhe International Investments Pte Ltd v Banque International A Luxembourg Bil (Asia) Ltd[2000] 4 SLR 449 in relation to the applicable procedure when a party has been in default of an unless order.

Irregularity

The requirements of Ord 2, r 2(2) (concerning an application made to set aside a process for irregularity) must be strictly complied with. The grounds of the challenge must be set out in the summons (rather than the affidavit). The failure to state any grounds in the summons or affidavit may be fatal to the application. (Zulkifl Baharudin v Koh Lam Son[2000] 2 SLR 233.) The court may be unwilling to allow a party who has improperly commenced proceedings by originating summons (instead of by writ of summons) to correct this error when he has already been

provided with the opportunity to do so by the court (even in the absence of specific directions). (Haco Far East Pte Ltd v Ong Heh Lai Francis[2000] 1 SLR 315.)

Challenging an action pursuant to Ord 12, r 7

The procedure under Ord 12, r 7 for challenging a suit is not applicable in all circumstances. It does not apply when the defendant makes an application for stay pursuant to a foreign jurisdiction clause. The reason for this is that such an application does not actually challenge the jurisdiction of the court (which is an essential requirement of the rule). (The Jian He[2000] 1 SLR 8, also discussed in “ADMIRALTY AND SHIPPING LAW at pp 3—5 and 16—19 supra).

Court”s control over vexatious litigants

The court has the inherent jurisdiction to make an order preventing a party from litigating repeatedly. In Chua Choon Lim Robert v M N Swami & Ors[2000] 4 SLR 494, the High Court observed that it had the inherent jurisdiction to prevent the initiation of civil proceedings which are vexatious, frivolous or likely to constitute an abuse of the process of court (citing Grepe v Loam(1887) 37 Ch D 168 to this effect). The court upheld the decision of the registrar to restrain the plaintiff from continuing to make multiple applications to court and from instituting new proceedings which raised previously determined issues. The inherent power of the court is in addition to the power that is conferred by s 74 of the Supreme Court of Judicature Act (Cap 322, 1999 Ed) on an application made by the Attorney-General to have a person declared as a vexatious litigant.

Service out of jurisdiction

Order 11 rule 1 sets out the various situations in which leave of the court can be sought for an originating process issued by the Singapore Courts to be served out of Singapore. Thus, there are two requirements. First, the case must fall within at least one of the nineteen sub-paragraphs of r 1. Secondly, the court must be persuaded to exercise its discretion and grant leave. In respect of this second requirement, it is clear law that the court will consider whether there is a serious issue to be tried.

In Bradley Lomas Electrolok Ltd & Anor v Colt Ventilation East Asia Pte Ltd & Ors[2000] 1 SLR 673, the Court of Appeal considered what was the appropriate standard of proof in establishing that a case falls within one of the sub-paragraphs of r 1, and in particular, r l(f)(i) which allows leave to be sought for service outside Singapore when “the claim is founded on a tort, wherever committed, which is constituted, at least in part, by an act or omission occurring in Singapore”.

Counsel for the respondents submitted that the appropriate standard of proof was a “good arguable case” and relied on Unilever plc v Gillette (UK) Ltd[1989] RPC 583. Thus, according to the respondents, the appellants/plaintiffs were required to show that there was a “good arguable case” that their claim was founded on a tort which was constituted at least in part by an act or omission which occurred in Singapore.

Counsel for the appellants argued that they merely had to show that there was a “serious issue to be tried” as to whether the case came within r l(f)(i). The appellants relied on Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran[1994] 1 AC 438 which was a case under r l(e). However, the Court of Appeal, in disagreeing with the appellants, pointed out that there was no dispute in Seaconsar that the facts were within r l(e). Instead, the point of contention in Seaconsar was the separate issue of whether the court should exercise its discretion having regard to the question of whether there was a serious issue to be tried. In fact. Lord Goff in Seaconsar specifically said that the requirements of r l(e) had to be established to the level of a good arguable case. Thus, Seaconsar, far from being an authority in the appellant”s favour, was in the respondent”s favour.

The Court of Appeal took pains to accurately define the standard of a “good arguable case”. The Court, relying on Vitkovice Horni a Hutni Tezirstvo v Korner[1951] AC 869, stated that “though the court will not at this stage require proof to its satisfaction, it will require something better than a mere prima facie case… On the other hand, a court on such an application for leave, is not called upon to try the action or express a premature opinion on its merits”.

Thus, the Court of Appeal re-affirmed that a court faced with an application for leave to serve an originating process outside Singapore should first consider whether there was a good arguable case that one of the nineteen sub-paragraphs of r 1 had been satisfied. Only if the answer to that question was “yes” should the court go on to consider, inter alia. whether there was a serious issue to be tried.

Importantly, the Court of Appeal then went further to say that in some cases there would be no need for the court to go on to the second issue of whether there was a serious issue to be tried. This is because the standard of a good arguable case is a higher standard than that of a serious issue to be tried. Thus, in cases where the elements in the relevant sub-paragraph of Ord 11 r 1 are of a substantive nature and relate to the merits of the case, the satisfaction of the “good arguable case” standard for...