CSR South East Asia Pte Ltd (formerly known as CSR Bradford Insulation (S) Pte Ltd) v Sunrise Insulation Pte Ltd

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeMPH Rubin J
Judgment Date13 May 2002
Neutral Citation[2002] SGHC 106
Citation[2002] SGHC 106
Defendant CounselM Segaram (Segaram & Co)
Docket NumberDistrict Court Suit No 1771 of (Registrar's Appeal No 600006 of 2002)
Published date19 September 2003
Plaintiff CounselJason Lim (Michael Khoo & Partners)
Date13 May 2002

defendants were in breach of consent order Whether plaintiffs entitled to enter default judgment

Civil Procedure

Entering of default judgment Failure of plaintiffs to take in account sums paid by defendants Whether judgment should be set aside ex debito justitiae

Facts

On 18 June 2001, the plaintiffs and the defendants arrived at a negotiated settlement in relation to their claim and counter-claim in DC Suit 1771/98. A consent order recorded by the court provided inter alia that the defendants were to pay the plaintiffs the sum of $21,718.92 in 4 equal instalments of S$5,429.73 each commencing on the 30th day of June 2001 and thereafter on the 30th day of each succeeding month; and in the event of default in any of the instalment payment on the part of the defendants, the plaintiffs shall be at liberty to enter judgment on the plaintiffs claimed sum of S$36,343.92 less any payments received from the defendants together with interest and costs. The defendants paid and the plaintiffs received the first three instalment payments in compliance with the terms of the consent order. The fourth and final instalment fell due on 1 October 2001 (30 September 2001 being a Sunday). A cheque drawn by the defendants dated 29 September 2001 was reportedly mailed to the plaintiffs at about 6.30pm on 1 October 2001 and was received by the plaintiffs only on 3 October 2001. The plaintiffs deemed the late arrival of the cheque to be in breach of the consent order and entered judgment against the defendants for the sum claimed originally by them in the suit less the amount of the three instalment sums. The defendants applied to set aside the default judgment, submitting that the posting of the cheque at 6.30pm on 1 October 2001 would have constituted compliance with the said consent order. Their application was dismissed by the Deputy Registrar and the defendants appealed unsuccessfully to a District Judge. The defendants appealed again to the High Court. In the course of the appeal, another feature suddenly surfaced. The High Court was informed that the plaintiffs, after having received the defendants cheque that was forwarded for the purposes of meeting the defendants fourth and final instalment obligation, retained possession of it and without telling the defendants what they were going to do with the cheque, proceeded to enter default judgment against the defendants for a sum which did not include the amount of the said cheque. Whilst the terms of the draft judgment forwarded to defendants counsel for their approval was still under contest, the cheque was banked in by the plaintiffs and had the sum stated in the said cheque credited into the plaintiffs account.

Held

, allowing the appeal

(1) The consent order expressly provided for a strict time frame for the instalment payments and a default clause spelling out the consequences of non-compliance with the said instalment arrangements. The defendants argument that the posting of the cheque at 6.30pm on 1 October 2001 would have constituted compliance with the said consent order, to say the least, was both untenable and disingenuous. The order was unequivocal and stipulates payment by the 30th of each succeeding month. In regard to the fourth instalment, the payment should have been made to the plaintiffs on or before 1 October 2001 but in the present case the cheque did not reach the plaintiffs until 3 October 2001. The terms of the consent order imports a clear implication that time is indeed of the essence in relation to the instalment payments and any default thereof would trigger the consequences stipulated under cl 4 of the said consent order. There could be no other interpretation. The consent order did indeed evidence a contract between the parties and given the factual background thus far, there was no justification to vary or modify the said order, without the consent of both the parties (See 11-12).

(2) The plaintiffs holding on to the defendants cheque for the fourth instalment was no mere accident or inadvertence but a conscious act. They had misjudged the legal implications of their action in retaining and subsequently cashing the said cheque. By proceeding to enter judgment for a sum which did not take into account the amount stated in the fourth instalment cheque was irregular and ought to be set aside ex debito justitiae (See 21).

Case(s) referred to

Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 All E R 377 (CA) (refd)

Australasian Automatic Weighing Machine Company v Walter [1891] WN 170

Hughes v Justin [1894] 1 QB 667

Bolt & Nut Co (Tipton) Ltd v Rowlands Nicholls & Co Ltd [1964] 2 QB 10 (CA)

Legislation referred to

Rules of Court, Order 3 r 3

Judgment

GROUNDS OF DECISION

1 The issue in this appeal revolves around a default provision in relation to instalment payments contained in a consent order made by the court, following a settlement agreement between the plaintiffs and the defendants in this suit

2 The background facts which give rise to the appeal before me are set out by the Learned District Judge in her grounds of decision and they could be summarised as follows.

3 On 18 June 2001, the plaintiffs and the defendants arrived at a negotiated settlement in relation to their claim and counter-claim in the suit herein. Following the settlement on the same day, a consent order was recorded by the court as follows:

1. the Defendants to pay the Plaintiffs the sum of $21,718.92 in 4 equal instalments of S$5,429.73 each commencing on the 30th day of June 2001 and thereafter on the 30th day of each succeeding month;

2. each party to bear [its] own cost;

3. the Notice of...

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    ...by MPH Rubin J in CSR South East Asia Pte Ltd (formerly known as CSR Bradford Insulation (S) Pte Ltd) v Sunrise Insulation Pte Ltd [2002] 1 SLR(R) 1079 (“Sunrise Insulation”) at [8]: 8 The nature and concept of the phrase “by consent” had received considerable judicial attention over the ye......
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    ...underpinning of a consent order has been adopted locally by MPH Rubin J in CSR South East Asia Pte Ltd v Sunrise Insulation Pte Ltd [2002] 1 SLR(R) 1079. The plaintiffs argued that the amendments are necessary to remedy the following breaches of the Consent Order by the defendants: (a) the ......
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    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2002, December 2002
    • 1 Diciembre 2002
    ...of the irregularity of a judgment before deciding on the appropriate order. In CSR South East Asia Pte Ltd v Sunrise Insulation Pte Ltd[2002] 3 SLR 281, a judgment in default was ruled to be irregular because the plaintiffs had not taken into account the defendants” final payment in their a......

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