Jumabhoy Asad v Aw Cheok Huat Mick and Others

• Judge: Chao Hick Tin JA
• Judgment Date: 31 July 2003
• Neutral Citation: [2003] SGCA 32
• Subject Matter: Test for determining whether an order is an interlocutory order or a final order,Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) s 34(1)(c),Courts and Jurisdiction,Judgments and orders,Civil Procedure,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
• Citation: [2003] SGCA 32
• Year: 2003
• Published date: 17 December 2003
• Plaintiff Counsel: Mdm Loh Wai Mooi, Ms Rowena Chew (Bih Li & Lee)
• Defendant Counsel: Chan Kia Pheng (Khattar Wong & Partners)
• Court: Court of Three Judges (Singapore)

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...