Khan Mohammad Nasir Uddin v Meki Corp Pte Ltd and others

• Jurisdiction: Singapore
• Judge: Vince Gui
• Judgment Date: 28 December 2023
• Neutral Citation: [2023] SGDC 308
• Court: District Court (Singapore)
• Docket Number: District Court Suit No. 2429 of 2017, District Court Summons No. 2185 of 2023
• Hearing Date: 01 December 2023
• Citation: [2023] SGDC 308
• Year: 2023
• Plaintiff Counsel: Namasivayam Srinivasan and Tan Shu Min, Emily (Hoh Law Corporation)
• Defendant Counsel: Lim Tahn Lin Alfred and Lee Pei Yi, Jamey (Meritus Law LLC)
• Subject Matter: Civil Procedure,Judgments and orders,Application to set aside default judgment after trial,Applicant's absence deliberate,Whether countervailing factors very compelling,Order 35 r 2(1) Rules of Court (2014 Rev Ed)
• Published date: 04 January 2024

Deputy Registrar Vince Gui: Introduction

This is the 3rd Defendant’s application to set aside a default judgment obtained after trial for which it was absent.

Post-trial default judgments are treated differently from pre-trial default judgments. As the Court of Appeal explained in Su Sh-Hsyu v Wee Yue Chew [2007] 3 SLR(R) 673 (“Su”) at [42] – [57]: In applications to set aside default judgments before trial, the question of whether there is a defence on the merits is the dominant feature to be weighed against the applicant’s reasons for the default and the delay in bringing the application as well as the prejudice caused to the other party. In applications to set aside default judgments after trial, the predominant consideration becomes the reason for the applicant’s absence which is to be weighed against other factors. Where the applicant’s omission is deliberate, the court will be most reluctant to set aside the judgment. Any countervailing factors favouring setting aside of the judgment must be “very compelling” to tilt the balance in favour of the applicant.

Having heard parties, it was apparent to me the 3rd Defendant’s absence from the trial was deliberate. But at the same time, I am of the view that the countervailing factors in favour of setting aside the default judgment were very compelling. Before I explain how I came to these views, I first set out the background facts.

Background facts

The Plaintiff, Khan Mohammad Nasir Uddin, was a Bangladeshi national working in Singapore. For personal injuries sustained during an industrial accident, he commenced DC/DC 2429/2017 (the “Main Action”) against the following parties:¹ the 1st Defendant, Meki Corp Pte Ltd, by whom the Plaintiff was employed under a work permit; the 2nd Defendant, Jin Sheng Pte Ltd, for whom the Plaintiff was assigned to work; and the 3rd Defendant, Sinstar Precast Pte Ltd, for whom the 2nd Defendant undertook to provide construction works.

The accident happened on 30 January 2016 at a construction project located at 58 Seletar North Link, Singapore 797613 (the “Project” and the “Worksite”). The 3rd Defendant was the occupier of the Worksite and the main contractor of the Project. The 3rd Defendant engaged the 2nd Defendant as a subcontractor to carry out construction works at the Worksite. Under the subcontract, the 2nd Defendant was to provide labour to produce precast components and other related works. To fulfil the subcontract, the 2nd Defendant procured manpower from the 1st Defendant which included the Plaintiff.²

The Plaintiff was tasked to place concrete cubes which measured 100mm on each side at the four corners of large precast concrete blocks which ranged between 200mm to 250mm in thickness (the “precast blocks”). The concrete cubes served as placeholders and/or foundational base structures for the precast blocks.³

According to the Plaintiff, he fell from a height of about three metres. The fall happened when he was performing instructions to place concrete cubes on a precast block. He used a vertical ladder to climb to the uppermost lawyer of the precast block that was about three metres in height. As he was standing on the top of the precast block, he lost his balance and fell to the ground.⁴

In the Main Action, the 1st Defendant failed to enter an appearance, following which the Plaintiff obtained default interlocutory judgment for damages to be assessed. The Plaintiff then proceeded to trial against the 2nd and 3rd Defendants.⁵

The Plaintiff’s case against the 2nd and 3rd Defendants was that they failed to take reasonable care to ensure his safety, including their failure to implement a safe system for work performed at heights.⁶

The 2nd Defendant’s case was that the precast block that the Plaintiff was assigned to work on was only about 1.4 metres in height. The Plaintiff was not tasked to carry out work on higher precast blocks as they were dealt with by separate teams of specialised workers. The 2nd Defendant was not sure exactly how the accident happened as there were no witnesses. It was not sure how the Plaintiff ended up on the top layer of the precast block. There was no need for him to be there. He could have placed the concrete cubes while standing on the ground or a ladder.⁷

The 2nd Defendant also adduced an accident investigation report which recorded what appeared to be the Plaintiff’s account of the accident. According to the said report, the Plaintiff was “standing on the ground” and stood with one leg on another concrete cube to reach a concrete cube on the top of a precast block. He slipped or tripped from the concrete cube and fell to the ground.⁸

The 3rd Defendant put the Plaintiff to strict proof of his claim. The 3rd Defendant took the view that it had taken adequate safety measures. It had no personal knowledge of the accident and was not present at the Worksite during the accident.⁹

The bifurcated trial on liability, which was heard by a different judge, took place over three tranches between September 2019 to August 2021.¹⁰ The 3rd Defendant attended the first two tranches of the trial conducted on 2 to 3 September 2019 and 13 January 2020. The third tranche of the trial was scheduled for 18-20 and 23-24 August 2021. Right before the third tranche of the trial, the 3rd Defendant’s solicitors filed a Notice of Ceasing to Act for the 3rd Defendant on 30 July 2021. The 3rd Defendant did not engage another set of solicitors. The third tranche of the trial proceeded in their absence. The Plaintiff and the 2nd Defendant were the only parties that attended the full course of the trial.¹¹

After reviewing the closing submissions, the learned trial judge (the “Trial Judge”) delivered his verdict on 8 December 2021. Against the 3rd Defendant, the Trial Judge entered interlocutory judgment (the “Default IJ”). In his written grounds issued subsequently, he explained as follows (see Khan Mohammad Nasir Uddin v Meki Corp Pte Ltd and 2 others [2022] SGDC 55 (the “Trial GD”) at [9]): 9 As the 3rd defendants had failed to put forward their defence, interlocutory judgment against the 3rd defendants was entered in favour of [the Plaintiff], for damages to be assessed, with costs reserved.

The Trial Judge however dismissed the Plaintiff’s claim. The Trial Judge did not believe the Plaintiff’s allegation that he had reached a height of three metres (at [48] of the Trial GD). The factual findings set out in the Trial GD may be summarised as follows (at [11] – [48]): There was insufficient evidence to show that the Plaintiff had climbed to a height of three metres. Contrary to the Plaintiff’s allegation, the evidence did not show that there was a ladder that could allow him to reach three metres in height. The Plaintiff could not state with certainty what ladder he used. A photograph of a ladder adduced in evidence was way shorter than three metres in height. The Trial Judge accepted the 2nd Defendant’s evidence that the Plaintiff was not a worker required to work at height. There was no need for the Plaintiff to climb to three metres in height. If he had done so, he would have been on a frolic of his own.

The Plaintiff appealed against the decision of the Trial Judge. The appeal was heard and dismissed by the General Division of the High Court on 5 July 2022. No written grounds were issued for the appeal.¹²

Following the dismissal of the appeal, the Plaintiff proceeded to move the matter for assessment of damages against the 1st and 3rd Defendants. The Plaintiff served a standard form for Summons for Directions on the 1st and 3rd Defendants on 2 February 2023. The Plaintiff filed a Summons for Directions on 28 February 2023 and the court made orders for the matter to proceed towards the assessment of damages on 1 March 2023. A pre-trial conference was fixed on 3 May 2023.¹³

The 3rd Defendant filed the present application to set aside the Default IJ on 7 September 2023 (the “Application”). In its supporting affidavit, the 3rd Defendant explained that it absented itself from the third tranche of the trial because the matter had become protracted, which placed “substantial strain” on its resources since the Main Action commenced in August 2017. It allegedly faced severe cash flow issues due to the Covid-19 pandemic and decided it was not financially prudent to continue defending the claim. With no end in sight, it decided to drop out of the proceedings. As for the delay in bringing this Application, the 3rd Defendant explained that it had initially thought the Plaintiff’s claim against the 3rd Defendant was dismissed following the dismissal of its claim against the 2nd Defendant, only to discover later that the Plaintiff had proceeded to obtain the Default IJ against the 3rd Defendant. It also alleged that the Plaintiff did not serve the Default IJ on the 3rd Defendant. It was only in May 2023 that the 3rd Defendant received a letter from the Plaintiff dated 8 May 2023. The 3rd Defendant engaged its present solicitors to conduct a search and came to discover the Default IJ on or around 22 May 2023. Its solicitors wrote to the Plaintiff on 27 June 2023 inviting the Plaintiff to withdraw its claim. The Plaintiff declined the request by way of his solicitor’s letter dated 15 August 2023.¹⁴

Parties’ submissions

The 3rd Defendant highlighted the following factors to persuade the court to set aside the Default IJ:¹⁵ The Plaintiff would not be prejudiced by the Default IJ being set aside. There is no suggestion that any of the factual witnesses would be unavailable in a re-trial.¹⁶ There is no undue delay in filing this Application. The Plaintiff did not serve the Default Judgment on the 3rd Defendant.¹⁷ The Plaintiff’s claim against the 3rd Defendant is unlikely to have any prospect of success because of the Trial GD. Allowing the Plaintiff to proceed for assessment of damages against the 3rd Defendant would be at odds with...