International SOS Pte Ltd v Overton Mark Harold George

• Jurisdiction: Singapore
• Judge: Choo Han Teck JC
• Judgment Date: 17 August 2001
• Neutral Citation: [2001] SGHC 226
• Docket Number: Suit No 514 of 2001 (Registrar's
• Date: 17 August 2001
• Published date: 19 September 2003
• Year: 2001
• Plaintiff Counsel: Randolph Khoo and Bernetter Meyer (Drew & Napier LLC)
• Citation: [2001] SGHC 226
• Defendant Counsel: Edwin Tong and Lee Kuan Wei (Allen & Gledhill)
• Court: High Court (Singapore)
• Subject Matter: Setting aside,Conduct of defendant in proceedings,Principles applicable,Application by defendant to set writ aside,Delay in taking out application to set aside writ,Defendant entering appearance,Civil Procedure,O 10 r 1(3) & O 12 rr 6, 7 Rules of Court,Whether defendant has taken step in proceedings barring him from applying under O 12 r 7,Originating processes,Writ not served properly on defendant,Writ,Whether adverse inference should be drawn against defendant

: This is an action by the plaintiffs against the defendant doctor seeking to restrain him from practising in Beijing, China on the ground that the defendant who was previously employed by the plaintiffs had signed an employment contract with a non-competition clause. The plaintiffs allege that the defendant is in breach of that agreement by working for a competitor in Beijing. The plaintiffs sought, among other prayers, an injunction against the defendant from working for Global Doctor Ltd, his present employers. The period specified in the non-competition clause expires at the end of August 2001, that is about three weeks from this hearing before me.

The plaintiffs obtained an order for the writ to be served in New Zealand where the defendant comes from but service was not effected because the defendant was not there. Eventually, on 4 June 2001, a copy of the writ and claim was handed to the defendant by a Chinese lawyer in China. On 22 June 2001 Allen & Gledhill entered appearance on behalf of the defendant. On 29 June 2001 the plaintiffs applied for an injunction as well as for summary judgment. On 2 July Allen & Gledhill wrote to Drew & Napier, the solicitors for the plaintiffs, asking for sight of the plaintiffs` application for service of the writ on the defendant in China. Drew & Napier replied saying that no such application was made and that on the defendant having entered appearance `all efforts at effecting service have ceased`. On 3 July Allen & Gledhill wrote to the Registrar of the Supreme Court stating that they will be seeking an adjournment of the plaintiffs` application for injunction which had been scheduled for hearing on the next day, 4 July 2001, so that the defendant may file an affidavit in reply. The application was heard by Justice Kan on 4 July. The defendant was given three weeks to file an affidavit in reply. However, no affidavit was eventually filed because the defendant applied two days later (6 July) under O 12 r 7 of the Rules of Court to dispute the jurisdiction of the court. Counsel for the plaintiffs, Mr Khoo, applied for an interim injunction but it was not granted. There is a dispute as to whether the defendant`s counsel, Mr Tong, argued against the application for an interim injunction before Justice Kan. I shall revert to this point shortly.

The defendant`s application of 6 July was heard by the assistant registrar who granted prayer 1 of the application and ordered that the writ of summons be set aside. The plaintiffs appealed before me against that order. They concede that the writ was not served, but contended that by virtue of the defendant having entered appearance, the writ is deemed to be duly served under O 10 r 1(3) which provides as follows:

Subject to Order 12, Rule 6, where a writ is not duly served on a defendant but he enters an appearance in the action begun by the writ, the writ shall be deemed to have been duly served on him and to have been so served on the date on which he entered the appearance.

Order 12 rule 6 provides that a party who enters an appearance shall not be treated as having waived any irregularity in the writ or service thereof. Thus, he is entitled to apply under O 12 r 7 to set aside the writ.

The main issue before me in this appeal concerned the question whether the defendant had taken a step in the proceedings which disentitles him to proceed with his application under O 12 r 7. Mr Khoo`s arguments were based on three acts of the defendant, namely, that he: (a) applied to adjourn the plaintiffs` application to 25 July 2001; (b) applied for leave to file an affidavit in reply to the plaintiffs` affidavit; and (c) argued against the plaintiffs` application for an interim injunction until 25 July 2001. These acts were alleged to have been done on 4 July 2001 when parties appeared before Justice Kan on the plaintiffs` application for an injunction. It will be useful to note that O 12 r 7 does not refer to taking steps inconsistent with an application under it. For ease of convenience I shall set out O 12 r 7(1):

A defendant who wishes to dispute the jurisdiction of the Court in the proceedings by reason of any such irregularity as is mentioned in Rule 6 or on any other ground shall enter an appearance and within the time limited for serving a defence apply to the Court for -

(a) an order setting aside the writ or service of the writ on him;...

The above provides a list of other reliefs which he might pray for. Order 12...