Denko-HLB Sdn Bhd v Fagerdala Singapore Pte Ltd

• Judge: Chao Hick Tin JA
• Judgment Date: 03 July 2002
• Neutral Citation: [2002] SGCA 31
• Citation: [2002] SGCA 31
• Defendant Counsel: Siva Murugaiyan and Parveen Kaur Nagpal ( Colin Ng & Partners )
• Published date: 19 September 2003
• Plaintiff Counsel: Liaw Jin Poh ( Yeo Leong & Peh )
• Date: 03 July 2002
• Docket Number: Civil Appeal No 21 of 2002
• Court: Court of Appeal (Singapore)
• Subject Matter: Bringing motion to Court of Appeal for extension of time to request for further arguments,Whether to allow motion,Factors to consider in determining whether to grant such application,Filing of request for further arguments before judge,Object of limited time frame in filing such request,Whether court has original jurisdiction to grant extension,Civil Procedure,Jurisdiction,s 34(1)(c) Supreme Court of Judicature Act (Cap 322, 1999 Ed),Appeals,Request for further arguments,Appeal against interlocutory order of judge-in-chambers,ss 18, 34(1)(c), 37(2) & Sch 1 para 7 Supreme Court of Judicature Act (Cap 322, 1999 Ed),Courts and Jurisdiction,Failure of appellants to apply to judge for further arguments within seven days of interlocutory order,Need for stricter approach in determining whether to grant such application,Court of Appeal,Application for extension of time to file appeal

(delivering the grounds of judgment of the court): This was a motion by Denko-HLB Sdn Bhd (`Denko`), seeking the indulgence of the Court of Appeal in respect of two matters:

(1) an extension of the time prescribed in s 34(1)(c) of the Supreme Court of Judicature Act (Cap 322, 1999 Ed) (`SCJA`) for a request to be made for further arguments to the judge-in-chambers in relation to an interlocutory order made by that judge;

(2) an extension of time to file and serve a notice of appeal against the said interlocutory order.

We heard the motion on 21 May 2002 and dismissed it. We now give our reasons as some points of practical significance were in issue.

Facts

Denko was the defendant in an action, Suit 1241/2001, brought by Fagerdala Singapore Pte Ltd (`Fagerdala`) for money due on goods sold. Denko applied to have the action stayed on the ground of forum non conveniens. The senior assistant registrar (`SAR`) granted the application and ordered a stay. Fagerdala appealed against that order to the High Court. On 19 February 2002, Lai Siu Chiu J, sitting in chambers, allowed the appeal and reversed the order of the SAR. The effect of this decision was that there would be no stay of proceedings.

It was not in dispute that the decision of 19 February 2002 was an interlocutory order and that under s 34(1)(c), if Denko wished to appeal, it must first apply for further arguments to the judge within seven days of the order. Pursuant to O 56 r 2, if the judge certified that he did not wish to hear further arguments, or if he failed to notify the party of his intention within 14 days, he would be deemed not to require further arguments and the party could proceed to file his notice of appeal. But if the judge should certify that he wished to hear further arguments then the order already made would be suspended and the judge at the further hearing could make such order as he thought fit: see Singapore Press Holdings v Brown Noel Trading [1994] 3 SLR 151 and Thomson Plaza v Liquidators of Yaohan Department Store [2001] 3 SLR 248 .

In the present case, the solicitor for Denko overlooked the requirement of s 34(1)(c) and did not apply for further arguments within the prescribed time. On 11 March 2002 his client instructed him to appeal and only then did he realise that he had failed to comply with s 34(1)(c). So on 12 March 2002, Denko`s solicitor applied for further arguments. Fagerdala objected to the application by way of a letter dated 14 March 2002. On 19 March 2002, Denko filed the notice of appeal. The next day, the Registrar of the Supreme Court notified Denko that their request for further arguments was out of time and not valid and that the notice of appeal filed by Denko the day before was also not valid.

These were the factual matrix upon which Denko moved the court for the two reliefs prayed for.

Finally, we should add that in the parties` submissions before us, besides seeking to persuade us to grant, or to refuse to grant, an extension of time, in terms of the motion, Fagerdala had also raised a jurisdictional point. However, we think it would be more expedient if we first deal with the substantive application in the motion.

Extension of time

This court has in numerous cases in the past set out the factors which should guide the court in determining whether to grant an extension of time to enable a party to file and/or to serve a notice of appeal out of time: eg Pearson v Chen Chien Wen Edwin [1991] SLR 212 [1991] 3 MLJ 208 ; Nomura Regionalisation Venture Fund v Ethical Investments [2000] 4 SLR 46 ; Aberdeen Asset Management Asia v Fraser & Neave [2001] 4 SLR 441 . Obviously, this application by Denko was not strictly an application to extend time to file and serve a notice of appeal. It was in relation to a step that was needed to be taken before an appeal could be lodged. So the question is: should the factors which are applicable to an extension of time to file and/or serve a notice of appeal also apply here?

In this regard, the decision of this court in The Tokai Maru [1998] 3 SLR 105 is germane. The dispute there concerned late filing of affidavits of evidence-in-chief. The appellants applied to obtain retrospective extension of time for the late filing. The judge below held that as there was no material before the court which satisfactorily explained the delay, he refused to give any extension and instead granted the respondent`s application to have the appellants` defence struck out. On appeal, this court ruled that a distinction should be drawn between an application for an extension of time to file a notice of appeal and an application to extend time in relation to other matters and that a less stringent approach should be adopted in relation to the latter kind of application. The court declared the applicable principles to be as follows (at [para ]23):

(b) The rules of civil procedure guide the courts and litigants towards the just resolution of the case and should of course be adhered to. Nonetheless, a litigant should not be deprived of his opportunity to dispute the plaintiff`s claims and have a determination of the issues on the merits as a punishment for a breach of these rules unless the other party has been made to suffer prejudice which cannot be compensated for by an appropriate order as to costs.

(c) Save in special cases or exceptional circumstances, it can rarely be appropriate then, on an overall assessment of what justice requires, to deny a defendant an extension of time where the denial would have the effect of depriving him of his defence because of a procedural default which, even if unjustified, has caused the plaintiff no prejudice for which he cannot be compensated by an award of costs.

While Denko`s application was not an application for an extension of time to file a notice of appeal, neither was it an application to extend time in relation to a matter of the nature as in The Tokai Maru . But the objective of Denko`s application was to enable Denko to appeal against the order made on 19 February 2002. It would appear that there is no previous case which addressed this very point. As we see it, Denko`s application was more akin to an application for an extension of time to file appeal rather than to file affidavits of evidence-in-chief out of time as in The Tokai Maru . It was a necessary step to filing an appeal. Therefore, a stricter approach should be followed in determining whether an extension of time should be granted to Denko. It must be borne in mind that the very limited time frame prescribed in s 34(1)(c) is to ensure that an interlocutory order made by a judge-in-chambers will obtain finality quickly so that the trial of the action will take place soonest practicable and not be bogged down by interlocutory squabbles. The trial of the action should not be delayed.

There are four factors which this court have consistently declared to be pertinent in determining whether an extension of time should be granted to file or serve a notice of appeal: the length of the delay; the reason for the delay; the merits of the appeal; and the question of the degree of prejudice. We will consider these factors in turn.

Length of delay

The delayed application to request for further arguments was made on 12 March 2002 when Denko should have made it on 26 February 2002, a delay of some 14 days....