Elitegroup Computer Systems Co, Ltd v Kobian Pte Ltd

• Jurisdiction: Singapore
• Judge: Philip Pillai JC
• Judgment Date: 01 February 2010
• Neutral Citation: [2010] SGHC 37
• Citation: [2010] SGHC 37
• Court: High Court (Singapore)
• Published date: 05 February 2010
• Docket Number: Suit No 594 of 2009 (Summons No 251 of 2010)
• Plaintiff Counsel: See Tow Soo Ling (Colin Ng & Partners LLP)
• Defendant Counsel: B Ganeshamoorthy (Cornerstone Law LLP)
• Subject Matter: Civil Procedure
• Hearing Date: 25 January 2010

Philip Pillai JC:

The plaintiff was earlier granted summary judgment on its action in which the defendant had filed an original counterclaim. The defendant’s application for a stay of execution based on its original counterclaim was unsuccessful as it did not raise a plausible counterclaim that would merit a stay.

This is an application by the defendant for leave to amend its counterclaim. In the event that leave to amend is granted, the defendant has made a further application for the judgment made on 12 January 2010 granting summary judgment to the plaintiff to be varied by an order to stay execution on the plaintiff’s summary judgment pending the trial of the defendant’s amended counterclaim.

Whether to grant leave to amend counterclaim?

The defence cites para 14/1/11 of Singapore Court Practice 2009 (LexisNexis, 2009) (“Singapore Court Practice”) in support of its need to amend its counterclaim at this preliminary stage:

The plaintiff must ensure that all necessary amendments to his statement of claim are made prior to filing his application for summary judgment. This principle was recently reiterated by Woo Bih Li in Lee Hsien Loong, at [26]. Woo J also endorsed Chun Thong Ping v Soh Kok Hong [2003] 2 SLR 204 (‘Chun Thong Ping’) on the point that where the plaintiff makes an application to amend his statement of claim in the course of the summary judgment hearing prior to its conclusion, it will normally be permitted if the defendant is provided with the opportunity to amend his defence.

The proposed amendments to the counterclaim are to add the claim of false, untrue or fraudulent representations founded on oral discussions between the plaintiff and the defendant in connection with the Memorandum of Understanding (“MOU”). The object of these amendments is consequentially to persuade the Court afresh that there is now a plausible counterclaim for an amount not less than the plaintiff’s claim within the circumstances set out in Singapore Civil Procedure 2007 (Sweet & Maxwell Asia, 2007) (“Singapore Civil Procedure”) at para 14/4/10 to wit:

(3) where there is no defence to the claim but a plausible counterclaim of not less than the claim is set up, judgment should be for the plaintiff on the claim with costs, stayed until the trial of the counterclaim;

I would state at the outset that this is not a case in which the defendant’s right to apply for leave to amend its counterclaim may not be pursued hereafter under Order 20 Rule 5 of the Rules of Court and for a court to permit such amendment as the court may find appropriate under the principles enunciated in Ketteman v Hansel Properties Ltd [1987] AC 189 which were applied in Wright Norman and anor v OCBC Ltd [1993] 3 SLR(R) 640, [1994] 1 SLR 513.

At this preliminary stage of the proceedings...