Jumabhoy Asad v Aw Cheok Huat Mick and Others

JudgeChao Hick Tin JA
Judgment Date31 July 2003
Neutral Citation[2003] SGCA 32
Citation[2003] SGCA 32
Defendant CounselChan Kia Pheng (Khattar Wong & Partners)
Published date17 December 2003
Plaintiff CounselMdm Loh Wai Mooi, Ms Rowena Chew (Bih Li & Lee)
Date31 July 2003
Docket NumberCivil Appeal No 1 of 2003
CourtCourt of Appeal (Singapore)
Subject MatterJudgments and orders,Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) s 34(1)(c),Civil Procedure,Courts and Jurisdiction,Court of appeal,Whether Court of Appeal has jurisdiction to hear appeal where order appealed against is interlocutory and appellant did not apply to judge for further arguments,Test for determining whether an order is an interlocutory order or a final order

Delivered by Chao Hick Tin JA

1 This is an appeal against a decision of Tay Yong Kwang JC (as he then was) refusing to set aside an ex parte order made by Rajendran J on the application of the liquidators of a company, Lion City Holdings Pte Ltd (“the company”), Messrs Mick Aw (“Aw”) and Christopher Johnson (“Johnson”), to have the appellant, a former director of the company, examined by the court on matters “concerning the promotion, formation, trade dealings, affairs or property of the company” and if necessary for the examination, to “produce all books, correspondence and documents in his custody, power or control.”

2 At the commencement of the hearing of the appeal before us, a preliminary issue, touching on the vital question as to whether the appeal is properly before this Court, was raised by the respondent. This judgment will address this preliminary issue.

The facts

3 The appellant (“Jumabhoy”) was a director of the company from February 1994 to September 1996 and became the managing director in 1996. On 24 March 2000, the company was wound up pursuant to an order of court. Aw and Johnson were appointed the liquidators. On 23 January 2002, pursuant to s 285 of the Companies Act, the liquidators applied by way of an ex parte summons-in-chambers (“summons”) for an order that Jumabhoy attend court for examination relating to the affairs of the company as aforesaid. After two adjournments, the summons was eventually heard on 23 April 2002, and the order for examination of Jumabhoy was granted. However, in the meantime on 18 April 2002, the liquidators filed a protective writ against Jumabhoy, as well as against his father and a brother. Due to an oversight, at the hearing of the summons, the liquidators failed to inform Rajendran J that the protective writ had been issued.

4 Some six months later, on 23 October 2002, Jumabhoy filed an application by way of summons-in-chambers to set aside or vary the order of Rajendran J. On 3 December 2002, this application was refused by Tay JC and it is against this decision that the present appeal is being brought.

Interlocutory or final

5 The preliminary issue arises because of s 34(1)(c) of the Supreme Court of Judicature Act which provides that-

(1) No appeal shall be brought to the Court of Appeal in any of the following cases:-

(c) subject to any other provision in this section, where a Judge makes an interlocutory order in chambers unless the Judge has certified, on application within 7 days after the making of the order by any party for further argument in court, that he requires no further argument;”

6 By this provision, it is clear that there can be no appeal against an interlocutory order made by a judge in chambers unless the aggrieved party shall, within 7 days thereof, make an application to the judge to hear further arguments and the judge has certified that he requires no further argument.

7 In the instant case, it is a fact that the summons came before Tay JC in chambers. There was no application made by Jumabhoy to the judge to hear further arguments. So there can be no appeal unless the order of Tay JC is a final order. Thus the question that remains to be answered is whether the order of 3 December 2002 is an interlocutory order or a final order falling outside the ambit of s 34(1)(c) of the SCJA. If it is the former, Jumabhoy would be precluded from filing any appeal.

8 The question whether an order is interlocutory or final was the subject of several decisions here. In Rank Xerox (Singapore) Pte Ltd v Ultra Marketing Pte Ltd [1992] 1 SLR 73, this Court, after reviewing the authorities, adopted the test propounded in Bozson v Altrincham Urban District Council [1903] 1 KB 547 to be the correct test:-

“Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then … it ought to be treated as a final order; but if it does not, it is then … an interlocutory order.”

In Rank Xerox the plaintiffs sought to set aside an order giving the defendants conditional leave to defend. Applying the Bozson test, the Court held that as the order did not finally determine the rights of the parties, it was interlocutory in nature.

9 It is of interest to note that in Rank Xerox, the plaintiffs argued that the order giving conditional leave to defend was nevertheless a final order as the defendant could only defend if the condition was satisfied. The Court rejected the argument and reasoned as follows (at p 76):-

“In our judgment the phrase ‘the rights of the parties’ contained in the Bozson test refers to the substantive rights in dispute in the particular action in which the application for summary judgment is made. When conditional leave to defend the action is given, then so long as the defendant complies with the condition, he has the right to a full trial on the merits, at which later time the substantive rights of the parties will be determined. All that the order for conditional leave decides is the condition subject to which the dispute on the substantive rights is allowed to proceed to trial. It does not decide any part of the substantive rights themselves.”

10 We are conscious that in England, the test adopted would appear to be the “application” approach: see Salaman v Warner [1891] 1 QB 734, which was applied in White v Brunton [1984] 1QB 571 and this latter case in turn declared that the Bozson’s test was no longer good law.

11 That is the English position. We would further add that in England the difficulties inherent in determining whether an order was interlocutory or final led to the enactment of Order 59 r 1 A in 1988 which sets out specific lists of final and interlocutory orders. A general test is also provided in that rule in respect of orders which do not fall within those specified in the lists.

12 But in so far as the position in...

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    ...v Teck Hock & Co (Pte) Ltd [1988] SGHC 103 (folld) Johnson v Gore Wood & Co [2002] 2 AC 1 (refd) Jumabhoy Asad v Aw Cheok Huat Mick [2003] 3 SLR (R) 99; [2003] 3 SLR 99 (folld) Kwa Ban Cheong v Kuah Boon Sek [2003] 3 SLR (R) 644; [2003] 3 SLR 644 (folld) Lai Swee Lin Linda v AG [2005] SGHC ......
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    ...Management Asia Ltd”); Rank Xerox (Singapore) Pte Ltd v Ultra Marketing Pte Ltd [1992] 1 SLR 73; Jumabhoy Asad v Aw Cheok Huat Mick [2003] 3 SLR 99; and Lim Kok Koon v Tan JinHwee Eunice & Lim ChooEng [2004] 2 SLR 322; as well as the earlier Federal Court decision (on appeal from Singapore)......
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