Elbow Holdings Pte Ltd v Marina Bay Sands Pte Ltd

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 11 August 2015
• Neutral Citation: [2015] SGHC 209
• Year: 2015
• Date: 11 August 2015
• Published date: 14 August 2015
• Hearing Date: 23 July 2015
• Plaintiff Counsel: Plaintiff in-person
• Citation: [2015] SGHC 209
• Defendant Counsel: Tsin Jenny and Fong Xian Jun Benjamin (WongPartnership LLP)
• Court: High Court (Singapore)
• Docket Number: Suit No 954 of 2012 (Summons No 3332 of 2015)

Choo Han Teck J:

In Summons No 3332 of 2015, the plaintiff seeks leave under O 1 r 9(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) for its newly appointed director, Mr Ted Tzovaras, to act on its behalf in the proceedings in court.

The plaintiff is a tenant of the defendant and commenced Suit 954 of 2015 against the defendant in November 2012 for damages for misrepresentation and breach of a tenancy agreement and a collateral contract. In response, the defendant filed a counterclaim for arrears in rent and commenced two suits against the defendant for further arrears allegedly due and owing to it by the plaintiff across two periods (ie, Suit Nos 702 of 2013 and 553 of 2014). The three actions were subsequently consolidated. Even though more than two years have passed, the trial has not begun because the parties are still engaged in interlocutory disputes. I heard and dismissed the plaintiff’s appeal against the Registrar’s decision to award security for costs in favour of the defendant in October 2014: see Elbow Holdings Pte Ltd v Marina Bay Sands Pte Ltd [2014] SGHC 219, where a brief summary of this action can be found.

Presently, four interlocutory matters are before the court. All four matters arose from the Assistant Registrar’s decision to grant interim payments and instalment payments to the defendant in an earlier summons, Summons No 1564 of 2015. Before these interlocutory matters can be heard, the preliminary issue of whether leave should be given for Mr Tzovaras to represent the plaintiff, who is no longer legally represented, has to be dealt with.

On 24 June 2015, M/s Wong & Leow LLC discharged itself as the plaintiff’s solicitors. It had earlier taken over from M/s Rajah & Tann LLP on 27 February 2014. Trial dates that were originally fixed from 28 September to 9 October 2015 have since been vacated.

Pursuant to O 5 r 6(2) and O 12 r 1(2) of the Rules of Court, a company may not appear in court except through an advocate and solicitor. Order 1 r 9(2) of the Rules of Court gives a discretion to the court to grant leave to a duly-authorised officer of the company to act on the company’s behalf in the court proceedings. O 1 r 9(2) provides as follows: (2) For the purposes of section 34(1)(ea) of the Legal Profession Act (Cap. 161) and paragraph (1), the Court may, on an application by a company or a limited liability partnership, give leave for an officer of the company or limited liability partnership to act on behalf of the company or limited liability partnership in any relevant matter or proceeding to which the company or limited liability partnership is a party, if the Court is satisfied that — (a) the officer has been duly authorised by the company or limited liability partnership to act on behalf of the company or limited liability partnership in that matter or proceeding; and (b) it is appropriate to give such leave in the circumstances of the case. An “officer” in relation to a company is in turn defined in O 1 r 9(6)(a) of the Rules of Court as “any director or secretary of the company, or a person employed in an executive capacity by the company”.

Order 1 r 9(4) stipulates the procedural requirements that have to be met. I am satisfied that the plaintiff has complied with these procedural requirements by filing two affidavits sworn by Mr Brian Oliver Patrick McGettigan, another director of the plaintiff, which set out the necessary contents in support of its application. The issue I have to decide is whether it is “appropriate to give such leave in the circumstances of the case”.

Both parties referred me to the two High Court cases that have discussed the amended O 1 r 9 in some detail: Bulk Trading SA v Pevensey Pte Ltd and another [2015] 1 SLR 538 (“Bulk Trading”) and Allergan, Inc and another v Ferlandz Nutra Pte Ltd [2015] 2 SLR 94. In Bulk Trading, Steven Chong J identified a range of factors the court ought to consider in deciding an application under O 1 r 9(2). The list includes the following: whether the application for leave has been properly made pursuant to the Rules of Court; the financial position of the corporate application...