Dongah Geological Engineering Co Ltd v Jungwoo E&C Pte Ltd

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 21 January 2022
• Neutral Citation: [2022] SGCA 7
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 62 of 2021 (Summons No 92 of 2021)
• Year: 2022
• Published date: 27 January 2022
• Hearing Date: 21 January 2022
• Plaintiff Counsel: Campos Conrad Melville, Chong Jia Hao and Michelle Lim Ann Nee (RHTLaw Asia LLP)
• Defendant Counsel: S. Magintharan and Liew Boon Kwee James (Essex LLC)
• Citation: [2022] SGCA 7

Steven Chong JCA (delivering the judgment of the court ex tempore):

This is the application of Dongah Geological Engineering Co Ltd (“Dongah”) to strike out Civil Appeal No 62 of 2021 (“CA/CA 62/2021”), an appeal filed to the Court of Appeal by Jungwoo E&C Pte Ltd (“Jungwoo”).

Background to the application

In April 2021, a dispute between the parties arose as a result of Dongah’s alleged failure to make progress payments to Jungwoo under a subcontract. Jungwoo served a payment claim on Dongah pursuant to the Building and Construction Industry Security of Payment Act 2004 (2020 Rev Ed) (“the SOPA”), and on 15 July 2021, the adjudicator rendered his adjudication determination, holding that Dongah was liable to pay Jungwoo a sum of $2,428,690.04 (“the Adjudicated Sum”).

On 16 August 2021, Dongah filed HC/OS 831/2021 to, amongst other matters, set aside the adjudication determination and seek a stay of enforcement in the alternative. The High Court Judge delivered his judgment on 22 October 2021 dismissing Dongah’s application to set aside the adjudication determination. However, he ordered a partial stay in respect of the enforcement of the adjudication determination and granted a partial release of the Adjudicated Sum to Jungwoo.

On 28 October 2021, Dongah filed Civil Appeal No 112 of 2021 (“AD/CA 112/2021”) before the Appellate Division of the High Court (“Appellate Division”). On the same day, Dongah filed AD/SUM 28/2021 seeking a stay of the order for the partial release of the Adjudicated Sum.

Even though Dongah had filed the appeal before the Appellate Division, Jungwoo filed a cross-appeal before the Court of Appeal on 2 November 2021. A case management conference was held on 10 November 2021 (“the 10 November CMC”) for the purpose of understanding Jungwoo’s reasons for doing so. There, Jungwoo’s counsel submitted that Jungwoo’s cross-appeal was properly made to the Court of Appeal because an application to set aside an adjudication determination under the SOPA is a case relating to administrative law. While Jungwoo took the position that Dongah should not have filed AD/CA 112/2021 before the Appellate Division, it declined to make an application for the transfer of AD/CA 112/2021 to the Court of Appeal. Following the 10 November CMC, Jungwoo’s filing was accepted, and its cross-appeal assigned as CA/CA 62/2021.

On 15 November 2021, the parties were informed by the court that pursuant to s 29E of the Supreme Court of Judicature Act 1969 (2020 Rev Ed) (“SCJA”), CA/CA 62/2021 had been identified for possible transfer from the Court of Appeal to the Appellate Division on the ground that it was not made in accordance with s 29C read with the Sixth Schedule of the SCJA.

On 22 November 2021, Jungwoo filed another cross-appeal to the Appellate Division which was identical to its cross-appeal in CA/CA 62/2021. By a letter to court dated 24 November 2021, Jungwoo’s counsel explained that Jungwoo had raised a “jurisdictional” objection in AD/SUM 28/2021 on the ground that the proper forum for the appeal should be the Court of Appeal and not the Appellate Division, but AD/SUM 28/2021 had yet to be determined by the court. As there was a “real dispute as to the proper forum for the appeal” and the decision of the Court of Appeal to transfer CA/CA 62/2021 might not be made on or before 22 November 2021, which was the deadline for Jungwoo to file an appeal, Jungwoo filed a second cross-appeal to the Appellate Division to “preserve [its] right [to] appeal” to the Appellate Division.

Due to this somewhat inexplicable turn of events, another case management conference was held on 26 November 2021 (“26 November CMC”), during which Jungwoo’s counsel persisted with this course of action despite the Assistant Registrar’s explanation that it was unnecessary for Jungwoo to file a second notice of appeal to the Appellate Division to preserve its right to appeal. Jungwoo’s filing was subsequently accepted and assigned as AD/CA 120/2021.

On 29 November 2021, Dongah took out the present application to strike out CA/CA 62/2021.

Our decision

The Court of Appeal has the inherent jurisdiction to strike out a notice of appeal where (a) the appeal is not capable of argument, or (b) the appeal is frivolous, vexatious or an abuse of the process of the court: Riduan bin Yusof v Khng Thian Huat and another [2005] 2 SLR(R) 188 at [17] and [20].

In our judgment, Jungwoo has unjustifiably subjected Dongah to two identical cross-appeals before two different appellate courts in a bid to hedge against the possibility that its initial filing before the Court of Appeal was a wrong call. It is clear, by any measure,...