Lim Kok Koon v Tan JinHwee Eunice and Lim ChooEng (a firm)

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 18 March 2004
• Neutral Citation: [2004] SGCA 9
• Docket Number: Civil Appeal No 106 of 2003
• Date: 18 March 2004
• Year: 2004
• Published date: 23 March 2004
• Plaintiff Counsel: Allan Tan Chwee Wan (JHT Law Corporation)
• Citation: [2004] SGCA 9
• Defendant Counsel: Vinodh Coomaraswamy and David Chan (Shook Lin and Bok)
• Court: Court of Appeal (Singapore)
• Subject Matter: Civil Procedure,Appeals,Judge agreeing to hear further arguments on costs alone,Judge giving order on merits and costs on same day,Whether order on merits suspended,Whether appellant filing Notice of Appeal out of time,Notice

18 March 2004

Chao Hick Tin JA (delivering the judgment of the court):

1 By way of a motion, the respondent, Tan JinHwee Eunice & Lim ChooEng, (“the firm”) who was the defendant in the action below instituted by the appellant, Lim Kok Koon (“LKK”), sought to have LKK’s notice of appeal set aside on the ground that the notice was filed out of time. The appeal of LKK was against a High Court decision dismissing his claim against the firm in relation to a fraud committed by a person who was at the material time a partner of the firm.

2 While at the conclusion of the hearing of the motion we were in agreement with the arguments of the firm that the notice was filed out of time, we nevertheless made no order on the motion and instead granted LKK’s oral application for an extension of time to file the Notice of Appeal out of time and thus regularised the notice filed. We now give our reasons why we disagreed with the submission of LKK and held that the notice was late.

The facts

3 First, let us set out in brief the facts leading to the motion. On 23 May 2003, LKK took out a writ against the firm on the ground of certain alleged fraud committed by a then partner of the firm. On 19 June 2003, the firm applied to strike out the writ on the ground that it did not disclose any reasonable cause of action and/or it was frivolous or vexatious and an abuse of the process of the court. The application was dismissed by the deputy registrar. However, on 26 August 2003, the judge in chambers allowed the appeal and struck out the claim and awarded the firm costs in the sum of $3,000.

4 The firm was dissatisfied with the sum fixed by the judge as to costs. Thus, on the very day, the firm wrote in requesting for further arguments only in relation to the question of costs. On 1 September 2003, apparently to comply with s 34(1)(c) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“SCJA”), LKK wrote to the judge asking for her certification that she required no further arguments.

5 On 2 September 2003, the High Court Registry informed the parties, with specific reference to the letter of 26 August 2003 from the firm, that the judge would hear further arguments on 16 September 2003. There was no reference whatsoever in that notification to the letter of 1 September 2003 from LKK. Neither was there any subsequent response from the Registry to that letter.

6 At the hearing on 16 September 2003, counsel for the parties submitted only on the question of costs, at the end of which the judge increased the amount of costs which she had earlier awarded. Neither party sought to argue on the merits of the case.

7 On 3 October 2003, the respondent filed an appeal against the whole of the judgment as if it was given on 16 September 2003.

Issues

8 The issue which arose from the motion was, did the fact that the judge agreed to hear further arguments on the question of costs mean that the entire judgment given by the judge on 26 August 2003 was also put on hold? In such a situation, how should the prescribed one month period to file a notice of appeal be reckoned?

9 Before we proceed to examine the issues, there is a related point which we need to address and this arose from LKK’s request of 1 September 2003 to the judge to certify that she required no further arguments. This request was to comply with s 34(1)(c) of the SCJA which prescribes that no appeal shall be brought to the Court of Appeal in relation to an interlocutory order made by a judge in chambers unless “the judge has certified, on application within 7 days after the making of the order by any party for further argument in court, that he requires no further argument”.

10 Now, the question is, in relation to the judgment of 26 August 2003, did LKK require a certification by the judge before he could appeal against it? The answer to that question would depend on whether the decision made that day was interlocutory or final. It would appear that there are two tests to determine the question. One is the “application” test enunciated in Salaman v Warner [1891] 1 QB 734 (“Salaman”) and the other, the “order” test which was propounded in Bozson v Altrincham Urban District Council [1903] 1 KB 547 (“Bozson”). This court reviewed the cases in Aberdeen Asset Management Asia Ltd v Fraser & Neave Ltd [2001] 4 SLR 441 (“Aberdeen Asset”) and was of the view that the Bozson test seemed more...