Koh Chong Chiah v Treasure Resort Pte Ltd

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judgment Date: 01 October 2013
• Date: 01 October 2013
• Docket Number: Civil Appeal No 36 of 2012

[2013] SGCA 52

Court of Appeal

Sundaresh Menon CJ

,

Chao Hick Tin JA

and

Andrew Phang Boon Leong JA

Civil Appeal No 36 of 2012

Koh Chong Chiah and others

Plaintiff

and

Treasure Resort Pte Ltd

Defendant

Koh Swee Yen, Paul Loy and Benjamin Fong (Wong Partnership LLP) for theappellants

Adrian Tan and Jackson Eng (Drew & Napier LLC) for the respondent.

Aberconway v Whetnall [1918] 87 LJ Ch 524 (not folld)

Alberta Pork Producers Marketing Board v Swift Canadian Co Ltd (1984) 53 AR 284 (folld)

Carnie v Esanda Finance Corp Ltd (1995) 182 CLR 398 (folld)

Carnie v Esanda Finance Corp Ltd (1996) 38 NSWLR 465 (refd)

CBS/Sony Hong Kong Ltd v Television Broadcasts Ltd [1987] FSR 262 (refd)

Cobbold v Time Canada Ltd (1976) 13 OR (2 d) 567 (refd)

Daws v Daily Sketch and Daily Graphic Ltd [1960] 1 WLR 126 (refd)

Duke of Bedford, The v Ellis [1901] AC 1 (folld)

Electrical, Electronics, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] QB 585 (distd)

Emerald Supplies Ltd v British Airways plc [2011] Ch 345 (not folld)

EMI Records Ltd v Riley [1981] 1 WLR 923 (refd)

Farnham v Fingold (1973) 33 DLR (3 d) 156 (distd)

Foo Jong Peng v Phua Kiah Mai [2012] 4 SLR 1267 (folld)

Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd [2006] 1 SLR (R) 927; [2006] 1 SLR 927 (refd)

General Motors of Canada Ltd v Helen Naken [1983] 1 SCR 72 (not folld)

Hong Kong Kam Lan Koon Ltd v Realray Investments Ltd [2005] 1 HKC 565 (folld)

Independiente Ltd v Music Trading On-Line (HK) Ltd [2003] EWHC 470 (Ch) (folld)

Irish Shipping Ltd v Commercial Union Assurance Co plc [1991] 2 QB 206 (refd)

JBollinger SA v Goldwell Ltd [1971] RPC 412 (refd)

John v Rees [1970] Ch 345 (folld)

Ker v Auto Marine Electric Ltd (1990) 43 CPC (2 d) 278 (not folld)

Koh Sin Chong Freddie v Chan Cheng Wah Bernard [2013] SGCA 46 (folld)

Lewis v Daily Telegraph Ltd (No 2) [1964] 2 QB 601 (refd)

Lin Jian Wei v Lim Eng Hock Peter [2011] 3 SLR 1052 (folld)

Markt & Co, Ltd v Knight Steamship Co, Ltd [1910] 2 KB 1021 (not folld)

Mercantile Marine Service Association v Toms [1916] 2 KB 243 (distd)

Moorcock, The (1889) 14 PD 64 (refd)

Palmco Holding Bhd v Sakapp Commodities (M) Sdn Bhd [1988] 2 MLJ 624 (distd)

Payne v British Time Recorder Co, Ltd [1921] 2 KB 1 (refd)

Prudential Assurance Co Ltd v Newman Industries Ltd [1981] Ch 229 (folld)

QBE Insurance Ltd v Sim Lim Finance Ltd [1987] SLR (R) 23; [1987] SLR 15 (refd)

RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR (R) 413; [2007] 4 SLR 413 (folld)

RJ Flowers Ltd v Burns [1987] 1 NZLR 260 (folld)

Roche v Sherrington [1982] 1 WLR 599 (distd)

San International Pte Ltd v Keppel Engineering Pte Ltd [1998] 3 SLR (R) 447; [1998] 3 SLR 871 (refd)

Smith v Cardiff Corp [1954] 1 QB 210 (refd)

Stephenson v Air Canada (1979) 103 DLR (3 d) 148 (refd)

Sumitomo Bank Ltd v Banque Bruxelles Lambert SA [1997] 1 Lloyd's Rep 487 (folld)

Taff Vale Railway Co, The v The Amalgamated Society of Railway Servants [1901] AC 426 (refd)

Trans-World (Aluminium) Ltd v Cornelder China (Singapore) [2003] 3 SLR (R) 501; [2003] 3 SLR 501 (folld)

Van Audenhove v Nova Scotia (AG) (1994) 28 CPC (3 d) 305 (not folld)

Ventouris v Mountain [1990] 1 WLR 1370 (folld)

Wee Chiaw Sek Anna v Ng Li-Ann Genevieve [2013] SGCA 36 (folld)

Western Canadian Shopping Centres Inc v Dutton [2001] 2 SCR 534 (folld)

Wyld v Silver [1963] Ch 243 (refd)

Misrepresentation Act (Cap 390, 1994 Rev Ed) s 2

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 15 r 12 (1) , O 15 r 12 (3) (consd) ;O 4 r 1, O 4 r 1 (1) (a) , O 15 r 4 (1) , O 15 r 4 (1) (a)

Alberta Rules of Court (Alta Reg 390/1968) (Can) r 42 (consd)

Credit Act 1984 (NSW)

Civil Procedure Rules (UK ) rr 19.10-19.15

Housing Act 1936 (c 51) (UK)

Rules of Practice of the Supreme Court of Ontario (Can) r 75

Rules of the Supreme Court 1883 (UK) O 16 r 9

Rules of the Supreme Court (Revision) 1962 (SI 1962 No 2145) (UK) O 15 r 12 (1)

Rules of the Supreme Court 1965 (SI 1965 No 1776) (UK) O 15 r 12 (1)

Supreme Court of Judicature Act 1873 (c 66) (UK) Schedule r 10

Supreme Court Rules 1970 (NSW) Pt 8 r 13 (1) (consd)

Civil Procedure—Representative proceedings—‘Same interest’ requirement—Whether claimants need to be identically situated—Whether court ought to exercise discretion to discontinue—Order 15 r 12 (1) Rules of Court (Cap 322, R 5, 2006 Rev Ed)

The appellants (‘the Appellants’) were representative plaintiffs who had commenced Suit No 849 of 2009 (‘Suit 849’), a representative action pursuant to O 15 r 12 (1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), on behalf of themselves and 202 other members of Sijori Resort Club (‘the represented persons’) (collectively ‘the claimants’). The respondent (‘the Respondent’) and Colony Members Service Club Pte Ltd (‘Colony’) were the defendants to Suit 849.

In Suit 849, the Appellants claimed for breach of contract, repudiation of contract and misrepresentation vis-à-vis the Respondent. In respect of the contractual claims, the Appellants pleaded that their membership agreements with Sijori Resort (Sentosa) Pte Ltd (‘Sijori’) had been novated to the Respondent (‘the novated membership agreements’) and that the Respondent acted in breach of contract by failing to accord the membership benefits conferred by the novated membership agreements. The Appellants also averred that the Respondent had repudiated the novated membership agreements by reason of its letter dated 4 February 2008, the contents of which allegedly evinced the Respondent's intention to renounce all of its obligations under the novated membership agreements. With regard to their misrepresentation claim, the Appellants pleaded that the Respondent had fraudulently represented in its letter dated 16 December 2006 that club members would continue to enjoy all existing benefits extended to them; they also relied on s 2 of the Misrepresentation Act in the alternative. The Appellants also claimed conspiracy to injure vis-à-vis the Respondent and Colony jointly. This claim was based on the Respondent's alleged breach and repudiation of the novated membership agreements and the circumstances surrounding the foregoing. As relief in respect of these causes of action, the Appellants sought a declaration that each of the claimants was entitled to damages (to be assessed separately at an assessment of damages stage).

Subsequently, the Respondent filed two summonses including one for an order that Suit 849 be discontinued as a representative action. Both applications were heard and dismissed by the same assistant registrar. Dissatisfied, the Respondent appealed. The same High Court judge heard and allowed both appeals; Suit 849 was discontinued as a representative action (albeit without prejudice to each of the represented persons commencing a separate action in his or her own right). The Appellants appealed against the decision to discontinue Suit 849 as a representative action.

Held, allowing the appeal in part:

(1) Order 15 r 12 (1) operated in two stages. At the first (jurisdictional) stage, the threshold requirement that the claimants have the same interest in the proceedings (ie, the ‘same interest’ requirement) must be met. It was only after the ‘same interest’ requirement had been met and the representative action properly commenced that the second (discretionary) stage was reached. At the second stage, the court could exercise its discretion to discontinue the proceedings in question as a representative action where the overall circumstances of the case so justified: at [26] , [27] and [29] .

(2) Given the equitable origin of the representative action and its function as a ‘tool of convenience’ in the administration of justice, O 15 r 12 (1) ought to be applied in a broad and flexible manner. For instance, the court retained the power to make the necessary orders to reshape proceedings at a later stage if they became impossibly complex or if the defendant was prejudiced: at [31] to [33] and [37] .

(3) Although representative actions offered a practical and economical method of asserting and enforcing a claim, this had to be weighed against prejudicial consequences for the defendant in a representative action. Ultimately, the court ought to strive to strike a balance between the interests of parties bearing in mind the purpose of O 15 r 12 (1), which was to facilitate access to and the efficacious administration of justice: at [34] to [36] and [38] .

(4) Claimants in a representative action did not need to be identically situated vis-à-vis the defendant. Rather, all that was needed was that there were one or more significant issues of fact or law common to all the claimants for determination by the court. The court would have to compare the significance of the common issues between the claimants with the significance of the issues which differed as between them. Where the latter clearly outweighed the former, the ‘same interest’ requirement would not be met. In this regard, the court practice in relation to O 4 r 1 (1) (a) and O 15 r 4 (1) (a) of the Rules of Court would be relevant. The focus of the court's attention should be on what was common between the claimants, and not what differentiated the cases of individual claimants: at [57] and [60] to [62] .

(5) Whether an issue was common between the claimants in a representative action was largely fact-dependent and would have to be determined on a case-by-case basis. As a general guideline, where the legal and factual inquiry required for the determination of an issue in a claim in a representative action was also relevant to the determination of the same issue in the other claims in the representative action, it was highly probable that the issue was common to all the claimants: at [59] .

(6) The mere fact that the defendant had separate defences against different claimants ought not to...