Hoi Hup Sunway Tampines Pte Ltd v Ng Hwee Chuah and another

• Jurisdiction: Singapore
• Court: Magistrates' Court (Singapore)
• Judge: Teo Jing Lu
• Judgment Date: 09 June 2023
• Neutral Citation: [2023] SGMC 39
• Citation: [2023] SGMC 39
• Published date: 07 July 2023
• Year: 2023
• Docket Number: Magistrate’s Court Suit No 7625 of 2020 (Summons No 4235 of 2022)
• Hearing Date: 05 May 2023,19 May 2023,29 May 2023
• Plaintiff Counsel: Benny Santoso and Sim Chee Siong (Rajah & Tann Singapore LLP)
• Defendant Counsel: The 1st Defendant and 2nd Defendant in person.
• Subject Matter: Civil Procedure,Judgment entered in default of defence,Setting aside default judgment,Litigants-in-person,Failure to comply with procedural rules,Whether leeway or special indulgence should be given,Building and Construction Law,Singapore Academy of Law holding disputed sum as stakeholder,Authorised deductions from stakeholding sum

Deputy Registrar Teo Jing Lu: Introduction

By the present application, the Defendants sought to set aside a judgment entered in default of defence. The Defendants in this case were self-represented parties who argued that they were laypersons and therefore ignorant of the need to file and serve a Defence. Should the Defendants-in-person be given leeway for their lack of familiarity with legal rules? To what extent should latitude be afforded for their non-compliance with the same? I considered these questions within the context of the present setting aside application.

After hearing parties and considering the merits of the Defendants’ case, I dismissed the application. Given that my ruling effectively precludes the Defendants from contesting the suit, I explain below the full grounds of my decision.

Background facts

The subject matter of the dispute concerned a sum of $51,045 held by the Singapore Academy of Law (“SAL”) as stakeholder. More than 10 years ago, Mr Ng Hwee Chuah (“Mr Ng”) and Ms Tan Bee Bee (“Ms Tan”) (collectively “the Defendants”) bought a condominium unit (“the Property”) from the Plaintiff who was the developer of a condominium project known as Arc @ Tampines. By a sale and purchase agreement dated 21 March 2012 entered into between the Plaintiff and the Defendants (“the SPA”), the Defendants purchased the Property for the sum of $1,020,900 (“the Purchase Price”).

Most of the Purchase Price had been paid to the Plaintiff, save for the remaining 5% amounting to $51,045 held by SAL as stakeholder (“the Stakeholding Sum”). On 28 July 2015, the Defendants submitted a “Deduction by Purchaser” form (Form 3) to SAL and applied for the full sum of $51,045 to be deducted from the Purchase Price on account of certain alleged defects in the Property. The Plaintiff promptly objected to the deduction and submitted an “Objection by Vendor to Deduction” form (Form 3A) to SAL on the same day. The disputed Stakeholding Sum thus remained with SAL.

On 21 July 2020, the Plaintiff commenced the present suit against the Defendants for the Stakeholding Sum. As the claim involved a declaration of the Plaintiff’s entitlement to the Stakeholding Sum, the Plaintiff filed an application for leave to enter judgment in default of defence in MC/SUM 2812/2022 (“SUM 2812”) pursuant to Order 19 r 7 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the Rules of Court”). After four separate hearings for SUM 2812, judgment was entered against the Defendants in default of defence on 18 October 2022 (“the Default Judgment”).

Pursuant to the Default Judgment, the Plaintiff’s solicitors requested SAL to release the Stakeholding Sum to the Plaintiff by way of a letter dated 25 October 2022. SAL responded by way of a letter dated 28 October 2022 that they shall pay the Stakeholding Sum to the Plaintiff on 3 November 2022. The cheque for the Stakeholding Sum was collected by the Plaintiff’s solicitors from SAL on 3 November 2022 and thereafter sent to the Plaintiff to be banked in.

On 9 November 2022, the Defendants filed the present summons MC/SUM 4235/2022 to set aside the Default Judgment.

The Court’s decision

As a preliminary point, the Defendants did not raise any irregularity in the Default Judgment, save that they disagreed with the interest awarded on the sum of $51,045 at a rate of 5.33% per annum from the date of Writ to date of Judgment (excluding the period from 24 November 2021 to the date of filing of MC/SUM 2812/2022 being 8 July 2022).¹ According to the Defendants, the Plaintiff should not impose interest for late payment of the sum withheld because the Plaintiff was not able to attend to the requests on defects rectification before the expiration of the defects liability period.²

I explained to the Defendants at the hearing on 5 May 2023 that the interest referred to in the Default Judgment was interest awarded pursuant to section 12 of the Civil Law Act 1909 and not based on any contract. As far as I could tell, there was no irregularity in the Default Judgment, and I proceeded on the basis that the Default Judgment was a regular one.

The law on setting aside a regular default judgment is well established. Under Order 19 r 9 of the Rules of Court, the court may set aside a judgment entered in default of defence. Where the default judgment sought to be set aside is a regular judgment, the burden rests on the defendant to establish a prima facie defence in the sense of showing that there are triable or arguable issues: Mercurine Pte Ltd v Canberra Development Pte Ltd [2008] 4 SLR(R) 907 (“Mercurine”) at [60]. While the merits of the defence feature as a highly significant consideration, this has to be weighed against other relevant considerations such as the defendant’s explanation both for the default and for any delay, as well as any prejudice occasioned to the other party (Mercurine at [65]).

Defendants’ explanation for failing to file a Defence Plaintiff did not mention the need to file a Defence

The Defendants filed a total of three affidavits in support of their setting aside application. Two out of three of those affidavits referred to an email from the Plaintiff’s counsel dated 29 September 2022 (“the 29 September Email”). In that email, the Plaintiff’s counsel informed the Defendants of the Court’s directions given at the hearing on 26 September 2022 in SUM 2812. The Court’s directions were as follows: Both Defendants to file their reply affidavits (if any) by 5 October 2022; The Plaintiff to file its response affidavit (if any) by 12 October 2022; The Plaintiff to serve on SAL the relevant papers in SUM 2812 by the end of the week and to seek SAL’s position on the same; and The hearing is adjourned to 18 October 2022 at 2.30PM.

The Defendants explained that because they were “legally untrained”, they “followed the Plaintiff counsel’s instructions” and filed their affidavit by 7 October 2022.³ According to the Defendants, they only later realised that they had to file a Defence “which was not mentioned”.⁴

The Defendants’ explanation is unacceptable. To begin with, the Defendants were not following any instructions from the Plaintiff’s counsel. The 29 September Email sets out the Court’s directed timeline for affidavit(s), if any, to be filed. The Plaintiff’s counsel was simply conveying the Court’s directions and timelines to the Defendants who were absent at the hearing. There is no obligation on the part of the Plaintiff to advise the Defendants on whether to file a Defence, or to give any directions for the filing of the same. The Defendants could not have looked to any email or correspondence from the Plaintiff for guidance as to whether or not to file a Defence. This is a decision to be made by the Defendants on their own accord.

Significantly, by highlighting only the directions given at the hearing on 26 September 2022, the Defendants’ portrayal of the history is incomplete, or worse still, misleading. By way of background, the hearing on 26 September 2022 was the third hearing of SUM 2812. The Defendants conveniently omitted to mention that the Court had, in the first two hearings of SUM 2812 (ie, on 1 August 2022 and 23 August 2022), observed that there was no Memorandum of Appearance and Defence filed in the suit. Ms Tan (who was the only one who attended the first two hearings in SUM 2812) was expressly asked to consider (a) whether she intended to file a Memorandum of Appearance and Defence in the main suit MC/MC 7625/2020; and (b) whether she intended to file any documents, such as affidavit(s), in SUM 2812.

Based on the case file records of the first hearing on 1 August 2022, Ms Tan indicated her intention to file a Memorandum of Appearance and Defence, although she also mentioned that she was not familiar with the filing process and did not want to hire a lawyer to save costs. An adjournment of three weeks was therefore granted for her to consider filing a Memorandum of Appearance and Defence in the suit and any affidavit(s) in SUM 2812. Adequate time was given for her to find out how to do so. At the second hearing on 23 August 2022, the court repeated the directions from the first hearing and noted again that there was no Memorandum of Appearance or Defence filed and no application(s) made with regard to the filing of the same. At that hearing, Ms Tan merely informed the Court that she intended to file an affidavit in SUM 2812, which eventually led to the directions given at the third hearing on 26 September 2022.

In the circumstances, the Defendants could not have been unaware of the need to file a Defence. Ms Tan, who attended the first two hearings of SUM 2812, would have known that the Defendants could file a Memorandum of Appearance and Defence if they were minded to do so. Indeed, on 13 September 2022 (after the first two hearings of SUM 2812), the Defendants filed a Memorandum of Appearance (out of time) as well as a request to inspect the case file. However, no Defence was filed.

Laypersons unfamiliar with legal procedures

The Defendants further pointed out that they were “not trained in law and court procedures”⁵ and ignorant of the need to file and serve a Defence.⁶ At the hearings before me, the Defendants made much of the fact that they were laypersons and contended that they should not be held to the same standards as represented parties. I considered this facet of the Defendants’ argument broadly in terms of whether special indulgence may be given to self-represented parties for failing to adhere to procedural rules.

The starting point is that self-represented parties are subject to the same legal and procedural rules. They are not absolved of compliance with procedural rules simply because they are litigants-in-person (see Loh Der Ming Andrew v Law Society of Singapore [2018] 3 SLR 837 at [166]). While the courts are cognisant of the fact that litigants-in-person are not legally trained...