A*Glasstech Pte. Ltd. v Full-Glass Pte Ltd

• Jurisdiction: Singapore
• Judge: Chiah Kok Khun
• Judgment Date: 30 April 2019
• Neutral Citation: [2019] SGDC 82
• Court: District Court (Singapore)
• Docket Number: District Court Suit No. 3749 of 2017, RA 95 of 2018, RA 96 of 2018, RA 97 of 2018
• Year: 2019
• Published date: 14 May 2019
• Hearing Date: 25 April 2019
• Plaintiff Counsel: Ms Doris Chia Ming Lai and Mr Amos Wee Choong Wei (DC Law LLC)
• Subject Matter: Civil Procedure,striking out,summary judgment
• Citation: [2019] SGDC 82

District Judge Chiah Kok Khun: Introduction

This trio of Registrar’s Appeals (“RAs”) before me concern two applications that the Plaintiff had taken out in the Suit herein; and one taken out by the Defendant. The two applications filed by the Plaintiff were: An application to strike out the whole of the Defendant’s counterclaim, i.e. [6] to [15] of the Defence and Counterclaim (Amendment No. 1) filed on 7 February 2018.¹ An application for summary judgment to be entered on the Plaintiff’s claim of $230,329.41 (“the claim”);²

The application³ taken out by the Defendant was to consolidate the Suit herein (“the DC Suit”) with Suit No. MC 21545/2017 (“the MC Suit”).

In respect of these applications, the learned Deputy Registrar (“DR”) struck out the counterclaim, allowed the summary judgment in the sum of $230,329.41, made no order on the consolidation application and ordered costs in favour of the Plaintiff.⁴ The Defendant appealed against all of the DR’s decisions.

The Plaintiff is in the business of glass supply and glass processing services. The Defendant is in the business of supply and installation of materials in construction and development projects⁵. The DC Suit is an action by the Plaintiff against the Defendant for 383 unpaid invoices for the supply of glass and provision of glass processing services (such as glass laminating, tempering and heat strengthening) by the Plaintiff to the Defendant. These unpaid invoices concerned about 170 projects of the Defendant and added up to a total sum of $230,329.41. Other than this action in the DC Suit, the Plaintiff has a separate action against the Defendant in the MC Suit in respect of 14 unpaid invoices for glass lamination and other services amounting to $12,381.13 for a project known as the Jurong Gateway project.⁶ It is not disputed that none of the invoices claimed in the DC Suit relates to the invoices claimed in the MC Suit.⁷

On 7 February 2018, the Defendant amended its Defences in both the DC Suit and MC Suit and added a counterclaim to each action (“the counterclaims”). It is not disputed that the counterclaims are identical.⁸ The Defendant also admits that the contents of these identical counterclaims relate solely to the Jurong Gateway (“J Gateway”) project.⁹

At this juncture, it would be useful to set out some background to the commercial dealings between the parties leading to the current litigation. The Plaintiff and the Defendant had a business relationship which started sometime in 2008. It appears undisputed that throughout their years of dealings, the Defendant would place orders for glass and/or glass processing services with the Plaintiff and the Plaintiff would issue invoices after each order was delivered. The Plaintiff would not request for payment on these invoices immediately but would accumulate several invoices and request for payment from the Defendant in a consolidated Statement of Account, as a lump sum payment.¹⁰

According to the Defendant, these Statements of Account would not differentiate between J Gateway and non-J Gateway projects, or any projects for that matter.¹¹ Similarly, lump sum payments made by the Defendant to the Plaintiff would also not distinguish between whether the payments were for particular projects. It would appear that on occasions, where there were either over-payment or under-payment by the Defendant to the Plaintiff, the Plaintiff would carry these amounts over to the next Statement of Account, and apply the same to another outstanding invoice which would then be reflected as credit sales under a subsequent consolidated Statement of Account.

On 21 December 2017, the Plaintiff filed Writs of Summons for both the DC Suit and the MC Suit. The Defendant’s contention is that the Plaintiff sought to differentiate the invoices in the Statement of Account into: (i) J Gateway invoices (i.e. the subject matter of the MC Suit); and (ii) non-J Gateway invoices (i.e. the subject matter of the DC Suit), when at all material times prior, the Plaintiff had treated all invoices (for any and all projects) as part of one consolidated course of dealing, and payment sought collectively through a single Statement of Account.

The Sequence of the Orders made by the Deputy Registrar

This leads to a preliminary matter in the RAs that I will deal with here. The Defendant contends that the order in which the DR decided to hear the three applications prejudiced the outcome of the applications against the Defendant.

The Defendant points out that the DR had noted preliminarily that “it was fairer and more sensible to hear arguments on all three applications before making my orders”.¹²The Defendant says that subsequently however, in his decision, the DR had: First struck out the Defendant’s counterclaim in the DC Suit (the subject matter of RA97);¹³ Then, considered the Plaintiff’s application for summary judgment before the Defendant’s consolidation application and took the view that only if summary judgment were denied would he go on to consider the Defendant’s consolidation application (the subject matter of RA96);¹⁴ Finally, allowed summary judgment to be entered against the Defendant in the DC Suit and completely left the Defendant’s consolidation application unconsidered (the subject matter of RA95).¹⁵

The Defendant says that in deciding right at the outset to strike out the Defendant’s counterclaim, he placed the Defendant at a disadvantage when the court eventually had to consider the summary judgment application because the Defendant would be, at that point, devoid of a defence of set-off (because the counterclaim in the DC Suit had been struck out). The Defendant complains that the approach taken by the DR rendered the Defendant’s consolidation application nugatory, effectively deciding against the Defendant without even considering the merits of the Defendant’s consolidation application. The Defendant contends that the prejudice suffered by the Defendant pursuant to the approach taken by the DR is significantly larger than that which the Plaintiff might suffer if the court had granted consolidation and subsequently denied the Defendant’s summary judgment application. This is because, even if summary judgment were denied, the Plaintiff would still have a chance to make out its case against the Defendant at trial. However, if summary judgment were granted against the Defendant, the Defendant would be completely shut out from making its defence.¹⁶

The Defendant submits that the fairest and most logical approach is:¹⁷ First, to consider the consolidation application for moving and/or combining the MC Suit with the DC Suit; Second, to consider the summary judgment application on the basis that a counterclaim had been filed by the Defendant in the same suit; Lastly: If consolidation is granted at (a), the striking out application would fall by the wayside; If consolidation is not granted, and leave to defend had been granted, consider whether the counterclaim ought to be struck out on its merits.

In my view, a distinction must be drawn between the order of hearing the applications; and the order of adjudicating the applications. There is no dispute that the DR had heard all three applications together, before making his orders. That must be the approach in dealing with these applications. They are inter-related, and they have to be heard and considered together. In the same vein, I heard all three RAs together and counsel agreed at the beginning of the hearing that I should do so. It is a different question in regard to the order the applications are adjudicated. The order of adjudication would be an integral part of the decision of the court in respect of the three applications. What the Defendant is contending in fact is that the DR ought not have decided the applications in the sequence he did. Implicit in that contention however, is the refutation of the DR’s determination in respect of each of the applications. The sequence of adjudicating the three applications flows directly from the decision the DR made in respect of each of the applications. The sequence of the orders in respect of the three applications was a function of his decision in respect of the applications. In this regard, I see no merit in the contention that the approach as reflected in the order of the DR’s decision on the applications was wrong in itself. The correctness or otherwise of the decision lies in the determination by the DR in respect of the applications; and not the order of hearing or determining the applications.

In any event, the sequence of the eventual orders made by the DR goes well with reason. If the counterclaim is unmaintainable and should be struck out, that order should rightly be made first. The summary judgment application should then be determined next, as in the event that judgment was granted (which was the case) in respect of the DC Suit, there would be no necessity to consider any consolidation with the MC Suit. It should be noted that the sequence of filing by parties of the applications was the Plaintiff’s application to strike out the counterclaim in the DC Suit first; followed by the Defendant’s application to consolidate the MC and DC Suits and then the Plaintiff’s application for summary judgment in the DC Suit. In this regard, it cannot be seriously disputed that the Defendant’s application to consolidate the two Suits was in response to the Plaintiff’s application to strike out the counterclaim in the DC Suit.

I turn now to each of the three applications, which corresponds to the three RAs before me. I will address them in the sequence that the DR gave his orders. The first is the striking out of the counterclaim.

The Striking Out Application

The law on striking out is uncontroverted. Under Order 18, Rule 19(1) of the Rules of Court, the court may strike out any pleading on the ground that: it discloses no reasonable cause of...