Hau Khee Wee and Another v Chua Kian Tong and Another

• Jurisdiction: Singapore
• Judgment Date: 22 November 1986
• Date: 22 November 1986
• Docket Number: District Court Appeal No 27 of 1986
• Court: High Court (Singapore)

Hau Khee Wee and another

Plaintiff

and

Chua Kian Tong and another

Defendant

[1986] SGHC 43

Chan Sek Keong JC

District Court Appeal No 27 of 1986

High Court

Civil Procedure–Extension of time–Appeal out of time–Record of appeal filed out of time–Applicant delayed by trying to obtain allegedly vital evidence–Whether factors to be taken into account in granting extension of time fulfilled–Order 54 r 7 Rules of the Subordinate Courts 1986

The plaintiffs (“the applicants”) had appealed against the judgment of a magistrate dismissing their claim for negligence against the defendants (“the respondents”). They filed the record of appeal about 24 days after the stipulated date and applied to the High Court for leave to file the record of appeal out of time. They attributed the delay to their attempt to obtain from the police photographs which were not produced at the trial and which they said were vital to their case.

Held, granting the application:

(1) The factors to be taken into account in deciding whether to grant an extension of time to file a notice of appeal were: (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if time for appealing was extended; and (d) the degree of prejudice to the would-be respondent if the application was granted: at [14].

(2) The court was of the view that: (a) the delay of 24 days, although long, was not excessive in the circumstances; (b) the chances of the appeal succeeding would certainly be enhanced by taking into account the additional evidence from the police; (c) the real cause of the delay was the genuine desire of the applicants' solicitors to make available all the evidence before the court and the fortuitous circumstance of the police not replying earlier to him and also his mistake in not realising that the appeal record could have been filed without the photographs; and (d) the grant of an extension of time could not prejudice the respondent which was an insurance company of means and the claim came within the jurisdiction of the Subordinate Courts. There was the additional but important factor that the court had been denied material evidence which, to the knowledge of the respondents' solicitors, was in existence but not disclosed: at [15].

Cheah Teong Tat v Ho Gee Seng [1975] 2 MLJ 149 (refd)

CM Van Stillevoldt BT v EL Carriers Inc [1983] 1 WLR 207 (refd)

Gan Hay Chong v Siow Kian Yuh [1975] 2 MLJ 129 (refd)

Government of Malaysia v Sim Siok Eng [1978] 2 MLJ 32 (refd)

Lau Foo Sun v Government of Malaysia [1970] 2 MLJ 70 (refd)

Lee Guat Eng v Tan Lian Kim [1985] 2 MLJ 196 (refd)

Ratnam v Cumarasamy [1965] 1 MLJ 228; [1965] 1 WLR 8 (refd)

Revici v Prentice Hall Incorporated [1969] 1 WLR 157 (refd)

Tan Chai Heng v Yeo Seng Choon [1979-1980] SLR (R) 658; [1980-1981] SLR 381 (refd)

Rules of the Subordinate Courts 1986O 54r 7 (consd)

Soh Kim Chuan (Soh & Partners) for the appellants

V K Rajah (Rajah & Tann) for the respondents.

Chan Sek Keong JC

1 This is an application by the appellants for leave to file the record of appeal out of time. The appellants had appealed against the judgment of the magistrate dated 5 June 1986 when he dismissed the claim of the appellants for damages for negligence against the respondents.

2 The notice of appeal was filed on 16 June 1986 and by virtue of O 54 r 7 of the Subordinate Courts Rules, the last day for filing the record of appeal was on 16 August 1986. This was not done and on 8 September 1986 the appellants' solicitors applied to this court by summons in chambers for extension of time. As this procedure was wrong, the solicitors on 11 September 1986 filed this notice of motion. The appellants are out of time by about 24 days.

3 The only reason given for the delay was that the solicitors for the appellants had been...