Kun Kay Hong v Tan Teo Huat

• Jurisdiction: Singapore
• Judge: Chua F A J
• Judgment Date: 30 November 1984
• Neutral Citation: [1984] SGCA 23
• Docket Number: Civil Appeal No 1 of 1984
• Date: 30 November 1984
• Year: 1984
• Published date: 19 September 2003
• Plaintiff Counsel: HE Cashin (Ng Kian Fong & Co)
• Citation: [1984] SGCA 23
• Defendant Counsel: Lim Kia Tong (Thomas Tham & Partners)
• Court: Court of Appeal (Singapore)
• Subject Matter: Writ of summons,Delay induced by or contributed to by words and conduct of defendant's solicitors,Civil Procedure,Limitation Act (Cap 10),Whether fatal,Request by defendant's solicitors to withhold service,Extension of validity,O 12 r 7(1) Rules of the Supreme Court 1970,Delay in applying for extension of validity of writ

In May last year, the learned assistant registrar ordered that the validity of the writ of summons filed in connection with a claim for personal injuries in a motor accident be extended to 24 November 1983. After personally accepting service at the High Court, the defendant through his solicitors, Messrs Ng Kian Fong & Co entered a conditional appearance and applied for an order that the renewal and service of the writ of summons be set aside under O 12 r 7(1) of the Rules of the Supreme Court 1970 (the Rules) and for a further order that the Plaintiff`s action against the defendant be dismissed as being statute-barred by virtue of s 6(4) of the Limitation Act (Cap 10).

On 7 October 1983 the learned deputy registrar dismissed the defendant`s application with costs. Being dissatisfied with the said order, the defendant appealed to the learned judge in chambers who on 17 January 1984 dismissed the appeal with costs. Against the decision of the learned judge, this appeal was brought before us. At the conclusion of the hearing of the appeal, we dismissed the appeal but made no order as to costs. We now give our reasons.

The accident took place some six years ago. It is averred in the statement of claim that on 26 November 1978 the plaintiff, who was riding a motor cycle and negotiating Newton Circus, was collided into from his left by a car driven by the defendant who was entering Newton Circus from Dunearn Road, Singapore. As a result of the accident the plaintiff sustained a 1cm laceration at the left supraorbital ridge, multiple abrasions and a closed fracture of the left femur. The fracture required open Kunstcher nailing of the left femur.

The solicitors of the plaintiff filed the writ of summons on 25 November 1981 which was the last day of the three year limitation period. They informed the defendant`s underwriters of the issue of the writ. On 8 December 1981 the solicitors for the plaintiff obtained an appointment from the Registry of the High Court to effect service of the writ on 2 January 1982. On 16 December 1981 the solicitors for the underwriters of the defendant, Messrs Ng Kian Fong & Co, wrote to the plaintiff`s solicitors for copies of the documents to enable them to investigate the accident. On 29 December 1981 the plaintiff`s solicitors supplied copies of the documents.

On 30 December 1981 Mr Ng Kian Fong of the solicitors of the defendant`s underwriters personally telephoned Mr Lim Kia Tong of the plaintiff`s solicitors and requested that service of the writ be suspended pending their investigations. Mr Lim Kia Tong, who then had just over a year`s standing at the Bar, said that he readily agreed out of respect, seeing that the request had come personally from a senior member of the Bar. In consequence, the date for service was vacated. In fact, on the same day, Mr Ng Kian Fong had also written a `Without Prejudice` letter to Mr Lim in which he asked for the amount which the plaintiff would accept by way of settlement out of court and in which he suggested, after noting the writ was not served, that Mr Lim `withhold further action in this matter pending the completion of our investigations in this matter`.

Throughout the following eight months, the matter did not see any progress. According to Mr Lim, he was waiting for the outcome of the investigations of the solicitors of the defendant. Mr Ng Kian Fong frankly admitted...