Koh Toi Choi v Lim Geok Hong

• Jurisdiction: Singapore
• Judgment Date: 29 May 2007
• Date: 29 May 2007
• Docket Number: Originating Summons No 15 of 2007
• Court: High Court (Singapore)

Koh Toi Choi

Plaintiff

and

Lim Geok Hong and another

Defendant

[2007] SGHC 87

Belinda Ang Saw Ean J

Originating Summons No 15 of 2007

High Court

Civil Procedure–Appeals–Leave–Application for leave to appeal–Whether trial judge's decision containing prima facie case of error of law–Section 21 (1) Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed)–Civil Procedure–Pleadings–Striking out–Defence and third-party statement of claim struck out at trial stage under O 18 r 19 (1) Rules of Court (Cap 322, R 5, 2006 Rev Ed)–Whether weak defence ground for striking out–Whether striking out at trial stage causing unfairness to one party

The plaintiff (“Koh”) was involved in an accident along Bendemeer Road. Koh was the driver of a taxi. The other vehicles involved in the accident were a motor car and a lorry. The motor car was owned by Lim Geok Hong (“Lim”) and the driver of the vehicle at the time of the accident was Lim Choon Hoong (“LCH”). The owner of the lorry was Ang Kee Huat Charcoal Trader against whom Koh sued as a third party (“the third party”) but the lorry was driven by its agent (“Chan”) at the material time.

According to Koh, Chan negligently drove the third party's lorry and caused or contributed to the damage at the rear of Lim's motor car (“prior collision”). However, Koh did not in his defence plead any prior collision between the third party's lorry and Lim's motor car. The trial commenced with LCH taking the stand. In the course of cross-examination, counsel for Koh put to LCH questions about the prior collision. This was objected to by counsel for the third party.

After the trial judge had halted the cross-examination and adjourned the proceedings to deal with the objections in chambers, she struck out Koh's defence in Magistrate's Court Suit No 25641 of 2005 (“the Defence”) and his third-party statement of claim. As a corollary of the striking-out order, final judgment was entered against Koh on 30 October 2006 for the agreed sum of $11,460.

Koh applied to the District Court for leave to appeal against the decision of the trial judge, but leave was refused. Koh then brought this application and sought leave to appeal on the ground that the trial judge made a prima facie error of law by, inter alia,striking out the Defence and the third-party statement of claim at the trial stage.

Held, allowing the application for leave to appeal with no order as to costs:

(1) Even though the Defence was not amended to include a plea that there was a prior collision, there was nonetheless a residual defence apparent from a reading of the Defence: at [12].

(2) For the purposes of O 18 r 19 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), a weak defence did not mean that there was no defence and the pleadings should not be struck out on that account: at [13].

(3) The question of whether the trial judge was right in exercising her discretion in the way she did was a matter of law: at [14].

(4) The trial judge misdirected herself in concluding that there was no defence disclosed in the Defence and in so doing, erred as to the law, and with that, she further erred in the exercise of discretion by deciding to strike out the Defence and the third-party statement of claim and to enter judgment in favour of Lim without turning to consider the right of Koh as a defendant to test Lim's case. Koh's right to cross-examine LCH at the trial proper could not be taken away, however strong Lim's case was: at [15] and [18].

(5) A striking out of the Defence summarily, particularly at the trial itself, enabled judgment to be entered, by which process the basic rule that the plaintiff had to first prove its case to the court was bypassed and that was unfair. Koh's pleaded defence was also a live issue which could only be determined after hearing oral evidence upon examination of the witnesses in open court: at [15].

(6) If the case had reached the point of trial without having been struck out, it had to be only in an exceptional case that such an application was granted and on receipt of a valid explanation for the lateness of the application. Nothing exceptional about the case was brought up to the trial judge: at [16].

Abdul Rahman bin Shariff v Abdul Salim bin Syed [1999] 3 SLR (R) 138; [1999] 4 SLR 716 (refd)

Blockbuster Entertainment Limited v James [2006] EWCA Civ 684 (refd)

Chee Siok Chin v AG [2006] 4 SLR (R) 541; [2006] 4 SLR 541 (refd)

Goh Kim Heong v AT and J Co Pte Ltd [2001] 3 SLR (R) 167; [2001] 4 SLR 262 (distd)

Halliday v Shoesmith [1993] 1 WLR 1 (folld)

Instrumatic Ltd v Supabrase Ltd [1969] 1 WLR 519 (refd)

IW v IX [2006] 1 SLR (R) 135; [2006] 1 SLR 135 (refd)

Lee Kuan Yew v Tang Liang Hong [1997] 2 SLR (R) 862; [1997] 3 SLR 489 (refd)

Rajendran a/l Palany v Dril-Quip Asia Pacific Pte Ltd [2001] 1 SLR (R) 887; [2001] 3 SLR 274 (refd)

Soh Lup Chee v Seow Boon Cheng [2004] SGHC 8 (refd)

Tokai Maru, The [1998] 2 SLR (R) 646; [1998] 3 SLR 105 (refd)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 18 r 19 (1) (consd);O 13 r 8, O 18 r 19

Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) s 21 (1)

Tan Oi Peng (Low Yeap Toh & Goon) for the plaintiff

Roy Manoj (Roy & Partners) for the first defendant

M P Rai (Cooma & Rai) for the second defendant.

Belinda Ang Saw Ean J

1 By this Originating Summons No 15 of 2007, the plaintiff, Koh Toi Choi (“Koh”), sought leave to appeal against the order of the district judge (“the trial judge”) striking...