Kraze Entertainment (S) Pte Ltd v Marina Bay Sands Pte Ltd

• Judge: Choo Han Teck J
• Judgment Date: 18 February 2013
• Neutral Citation: [2013] SGHC 39
• Citation: [2013] SGHC 39
• Court: High Court (Singapore)
• Published date: 22 February 2013
• Docket Number: Suit No 410 of 2011 (Registrar’s Appeal No 39 of 2013)
• Plaintiff Counsel: Mohammed Reza and Jared Kok (Rajah & Tann LLP)
• Defendant Counsel: Davinder Singh SC, Pardeep Singh Khosa and Chan Yong Wei (Drew & Napier LLC)
• Subject Matter: Civil Procedure,Extension of time
• Hearing Date: 07 February 2013

Choo Han Teck J:

This was an appeal by the plaintiff against Assistant Registrar Shaun Leong’s (“AR Leong”) order dismissing the plaintiff’s application of 5 February 2013 for an extension of 14 days for it to comply with an order made on 15 January 2013 requiring it to furnish $100,000 as security for costs. AR Leong, who also made the order of 15 January 2013, had directed that payment be made within 21 days from 15 January 2013, and the order expressly stated that it was to be made no later than 4 pm of 5 February 2013, “failing which the Plaintiff’s claims [would] be struck out” (“the Order”).

The deadline was thus 4 pm on 5 February 2013. The plaintiff did not appeal against the Order and so on 1 February 2013 it applied by Summons No 621 of 2013 (“SUM 621/2013”) for an extension of 14 days from the date of disposal of the summons to furnish the security ordered. On the same day, counsel for the plaintiff obtained an order that SUM 621/2013 be heard on 5 February 2013. The defendant’s solicitors were informed of the hearing on 4 February 2013. On 5 February 2013, AR Leong, having no supporting affidavit to consider, and no submission on the grounds for the application for an extension of time, enquired of counsel the grounds for the application. The court’s query was answered by counsel as follows:

The grounds are basic, which is that our clients are unable to comply with the existing order.

I do not think that in the circumstances it was at all surprising or wrong for AR Leong to dismiss SUM 621/2013. It is also not surprising, given the nature and circumstances of this action that the plaintiff appealed against AR Leong’s order of 5 February 2013. I should now add that the day after I dismissed the appeal, the solicitors for the plaintiff wrote a letter to court dated 8 February 2013. The key paragraph (paragraph 3) of the letter stated as follows:

We wish to state for the record that the following submissions were made at the 5 February 2013 hearing before Assistant Registrar Mr Shaun Leong...

The rest of that letter purporting to set out the said grounds is not important at the moment. The plaintiff’s appeal was dismissed and the record stands as it stood. The plaintiff has no right to tell the court, especially by letter, how the record should stand. It could, if it wanted to, apply to rectify the record or to record a further submission. It would be left to the discretion of the court as to whether that application would be heard. As far as I am concerned, the plaintiff’s letter of 8 February 2013 is not part of the record.

Returning to the appeal before me on 7 February 2013, I am of the view that it is indeed harsh for an action to be struck out without trial, especially when it is struck out for failing to comply with an interlocutory order. Mr Mohammed Reza (“Mr Reza”), counsel for the plaintiff, relied on Syed Mohamed Abdul Muthaliff and another v Arjan Bhisham Chotrani [1999] 1 SLR(R) 361 (“Syed Mohamed”) and urged me to agree that in exercising its discretion the court ought to consider the prejudice to the defaulter. He submitted that the court should balance the failure to comply with the competing interests, namely, depriving the plaintiff...