Deputy Registrar Chua Wei Yuan:
Background
The facts of this case were relatively simple, but they gave rise to four applications, in which some seemingly chicken-and-egg questions were raised. One issue that pervaded these applications, therefore, was the sequence in which they should be heard and decided.
The plaintiff supplied the defendant with glass products and services for several construction projects. It commenced two suits against the defendant, one in the District Court (“the DC Suit”) and the other in the Magistrate’s Court (“the MC Suit”). In both suits, it sued on unpaid invoices. The invoices in the MC suit concern one project at Jurong Gateway; the invoices in the DC Suit were in respect of all the other projects. In each suit, the defendant filed an identical counterclaim for some $2.8m in damages arising out of an alleged breach of conditions implied by virtue of the Sale of Goods Act (Cap 393, 1999 Rev Ed) for the supply of goods to the Jurong Gateway project. These damages were allegedly for losses flowing from the difference in value of the products and the costs of rectification to be incurred.
Originally before me were three applications in the DC Suit. In order of filing date, they were: the Plaintiff’s application to strike out the counterclaim; the Defendant’s application to consolidate both suits and to transfer the suits to the High Court (“the HC”); and the Plaintiff’s application for summary judgment in the sum of $230,329.41 plus interest and costs. A fourth application was filed by the defendant, after I had reserved judgment, seeking to adduce further evidence to resist summary judgment. I heard arguments at an adjourned hearing before rendering decision on all the applications.
While I allowed the defendant to adduce the supplementary affidavit, I struck out the counterclaim and gave summary judgment on the principal claim. In the event, I did not order a consolidation of the suits.
Decision
My grounds of decision below supplement and clarify the reasons I gave parties when I rendered my decision. It will not escape the parties’ notice that the reasons I gave previously were organised in a slightly different manner. On reflection, it seems clearest to explain my views: first, on the sequence in which these applications should be heard and decided; next, on each of the individual applications in such sequence; and finally, on the costs of the applications.
How should the applications be heard and decided?
In the usual case, applications are heard and decided discretely. This is reinforced by Practice Direction 24A of the State Courts Practice Directions (“PD”), which directs that each distinct substantive application must be filed in a separate summons. That said, it is not uncommon for multiple applications to be fixed for hearing together, especially when there appear to be some relationship between the prayers sought. Indeed, this will only become the norm if the recommendations of the Civil Justice Commission and the Civil Justice Reform Committee—specifically, that there be as far as possible a single interlocutory application addressing all matters necessary to bring the matter to trial—come to pass (see the Report of the Civil Justice Commission (29 Dec 2017), at Chap 7, para 5; the Report of the Civil Justice Review Committee (Oct 2018), at para 72; Civil Justice Commission and Civil Justice Review Committee, Public Consultation on Civil Justice Reforms (26 Oct 2018), at paras 71–72; and the draft Rules of Court (Cap 322, R 5, 2018 Rev Ed), Part 1 Chap 7 r 8(2)–(4)). In such cases, parties might make the preliminary argument that the applications should be heard and decided in a certain order.
In principle, the Court has the discretion as a matter of case management to fix multiple interlocutory applications to be heard together. This tends to just, economical and expeditious resolution of disputes and, often enough, more efficient use of court resources. In such cases, it is sometimes easy—and better—to decide which application is logically prior to which and to dispose of cases in that order, because this can prevent wasted costs (ie, counsel need not make arguments which would turn out to be moot). In other cases, it is doubtful if such an exercise yields any net benefit because some applications may be so deeply intertwined such that one would have to enter deeply into the merits of the application to determine the order in which they should be decided, such that one would have been better off simply presenting the arguments for each application in the first place (even if some would turn out to be moot). In this latter category of cases, it would help to address the court specifically on how the outcome of each application depends on the outcome of the others. How the court approaches each set of multiple applications must depend on the facts and circumstances of the case and, in particular, the kinds of prayers and arguments presented in the applications.
In this case, I decided at the first hearing to hear arguments on the three applications before making substantive orders in any of them. Both parties then agreed—as I would have been inclined to direct—that the applications be argued in the order they were filed. At the adjourned hearing, I decided to hear arguments on the fourth application before deciding even the striking out and consolidation applications.
The application for transfer of proceedings could be dealt with separately since the defendant was seeking to withdraw it. Having reflected on parties’ arguments, I consider that the remainder of the applications would ideally be approached in the following manner: first, to dispose of the application to adduce further evidence and to decide if the counterclaim in the DC Suit amounts to a set-off against the claim in the DC Suit and, in so doing, decide whether the counterclaim should be struck out; next, to consider if summary judgment should be granted (and if I should, consequent to the application to adduce further evidence, allow the plaintiff a reply affidavit); third, to decide if the DC Suit and the MC Suit should be consolidated; and finally, to deal with the costs of all the applications.
First, the application to strike out a counterclaim appeared logically prior to the application for summary judgment on the principal claim because (at least on a prima facie basis) the existence of the counterclaim may provide a ground to stay execution on any judgment that may be granted, and it might even amount to a defence of set-off, which would be a triable issue. The defendant argued in this case was that it was effectively compelled to plead identical counterclaims because the plaintiff had elected to split its claims across two suits. In my view, this did not require the striking out application to be decided after the other applications; it simply meant that the outcome of the striking out application might turn on an issue that is typically addressed in the context of the summary judgment application, ie, whether the counterclaim is capable of amounting to a set-off to the claims in the DC Suit.
Next, as between applications for consolidation and summary judgment, one might argue—as did the defendant—that the consolidation application is logically prior, since a defence or triable issue might be disclosed in the counterclaim in the other action with which a consolidation of this action is sought. However, I considered the summary judgment application to be logically prior, since the aim of consolidation—to “save costs, time and effort and for reasons of convenience in the handling of the hearing of several actions” through which a common thread runs (Lee Kuan Yew v Tang Liang Hong [1997] 2 SLR(R) 141 at [4])—falls away if summary judgment is given. In other words, it would be fruitless to consolidate two actions if summary judgment could be given on the claims in one action. Even if summary judgment should be given but with a stay of execution, consolidation would still be unnecessary since I could order a stay of execute on the judgment in the DC Suit pending the disposal of the claim and counterclaim in the MC Suit.
Third, as between the striking out and consolidation applications, the answer as to which should be decided first is perhaps the least straightforward. On the basis of my views above, it should follow that the striking out application be decided before the consolidation application. While this was ultimately what I did, this was not quite for either of the plaintiff’s two arguments.
The plaintiff’s first argument was that the deputy registrar presiding at one of the previous pre-hearing conferences had directed that the striking out application be disposed of first. Upon my examination of the minutes, the deputy registrar ordered only that these applications be fixed for hearing together. Indeed, it would be unusual for a deputy registrar conducting the pre-hearing conference—whose principal aim is simply to ensure that parties are ready to proceed to the hearing on the merits—to direct how the applications are to be disposed of. That issue is almost invariably left to the discretion of the court hearing the matter on its merits. The second argument was that in any event such an approach was taken in Terrestrial Pte Ltd v Allgo Marine [2013] 3 SLR 527 (HC) (“Terrestrial”), since in both cases there were duplicate claims (or counterclaims). In Terrestrial, T sued A in one suit for monies owing under a loan. In that suit, A filed a counterclaim for a breach of contract. Subsequently, A sued T in another suit for the same breach of contract. Chan Seng Onn J disagreed with the assistant registrar’s order to consolidate the two suits instead of striking out the second suit; in his view, this was clearly a case where T had commenced duplicate actions and that this was vexatious and an abuse of process. Howe...
