Lim Poh Yeoh (alias Aster Lim) v TS Ong Construction Pte Ltd

• Jurisdiction: Singapore
• Judge: Foo Chee Hock JC
• Judgment Date: 31 January 2017
• Neutral Citation: [2017] SGHC 11
• Plaintiff Counsel: Joseph Ignatius and Chong Xin Yi (Ignatius J & Associates)
• Docket Number: HC/Suit No 92 of 2015 (HC/Registrar’s Appeal No 94 of 2016)
• Date: 31 January 2017
• Hearing Date: 22 November 2016,05 September 2016,27 September 2016
• Subject Matter: Stay of proceedings,Civil Procedure
• Published date: 29 August 2017
• Defendant Counsel: Alvin Chang and Hannah Alysha (M & A Law Corporation)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 11
• Year: 2017

Foo Chee Hock JC: Introduction

In 2011, the plaintiff in HC/Suit No 92 of 2015 (“Suit 92”), Lim Poh Yeoh (“the Plaintiff”) employed the defendant, TS Ong Construction Pte Ltd (“the Defendant”) to construct a pair of three-storey semi-detached dwelling houses with an attic and an open roof terrace.¹ Disputes arose and spawned the following proceedings:² Suit 92: the present proceedings commenced by the Plaintiff wherein the Plaintiff claimed for, inter alia, liquidated damages on the basis of delay in completion of the construction works and unliquidated damages for defective works. The Defendant filed a counterclaim for the unpaid sum owing to it for the works it had completed. The value of the counterclaim was $248,195.40 (see para 16 of Defence and Counterclaim), which was less than the sum of the Plaintiff’s claim (ie, approximately $412,316) (see para 28 of Statement of Claim). Originating Summons No 381 of 2013 (“OS 381”): the Defendant had registered an adjudication determination (“the Adjudication Determination”) (pursuant to the Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed) (“SOPA”)), wherein the Plaintiff was ordered to pay a sum of $138,660.16, with interest and costs to the Defendant; leave was granted to the Defendant to enforce the Adjudication Determination in the same manner as a judgment or an order of court (“the Judgment Debt”).³ This led the Defendant to take out several enforcement proceedings against the Plaintiff (see para 26 of Defendant’s Written Submissions (“D’s WS”) dated 5 September 2016). First, it succeeded in obtaining a garnishee order against the Plaintiff’s bank (ie, Oversea-Chinese Banking Corporation Limited) through which the Defendant managed to secure payment of the sum of $30,722.86. The Defendant also obtained an order for the examination of judgment debtor and, subsequently, a writ of seizure and sale against the Plaintiff’s property, although United Overseas Bank as mortgagee of the property refused to consent to the sale. HC/Originating Summons (Bankruptcy) No 66 of 2015 (“OSB 66”): the Plaintiff applied to set aside a statutory demand issued by the Defendant. The statutory demand was set aside by Edmund Leow JC in HC/Registrar’s Appeal No 350 of 2015. There is presently an appeal pending before the Court of Appeal against Leow JC’s decision.

As a result of not having the various costs orders and the Judgment Debt satisfied, the Defendant filed HC/Summons No 6188 of 2015 (“SUM 6188”) wherein it asked for a stay of Suit 92 pending the payment by the Plaintiff to the Defendant of all sums owed in respect of the orders of court made in OS 381 and OSB 66. The Assistant Registrar granted the stay.

In HC/Registrar’s Appeal No 94 of 2016 (“RA 94”) (ie, the present proceedings), the Plaintiff appealed against the decision of the Assistant Registrar⁴ to stay Suit 92. It should be noted, however, that due to the statutory demand in OSB 66 being set aside by Leow JC on appeal (in favour of the Plaintiff) and due to the Plaintiff having paid the interlocutory costs orders which arose in Suit 92, what remained unpaid by the Plaintiff to the Defendant (when I made the present orders) were the outstanding costs and the Judgment Debt in OS 381 only.

The central issue before the court was therefore whether Suit 92 should be stayed because of the non-payment of the costs and the Judgment Debt. There were two aspects to this issue: whether the court had the power to order such a stay; and if so, whether the court should exercise its discretion to order the stay.

On 22 November 2016, I delivered my decision to the parties wherein I answered both of the above questions in the affirmative. I decided, however, to grant the Plaintiff one final indulgence and allowed her (about) one month to satisfy the outstanding costs orders and the Judgment Debt in OS 381; in default all proceedings in Suit 92 were to be stayed.

The Plaintiff has now appealed against the whole of my decision.

Non-payment of costs

It was not disputed between the parties that the court has the power to stay proceedings for the non-payment of costs. In this respect, the Defendant submitted the following:⁵

This principle has been succinctly set out in Halsbury’s Law[s] of England vol 37 (4th Ed, 2001) at para 930, p 293 (see Roberto … at [20]), namely as follows: “Under its inherent jurisdiction the court has power to order the stay of proceedings or further proceedings in a variety of circumstances. These include power to stay proceedings … where the costs of a previous claim or previous proceedings have not been paid.”

The Plaintiff, on the other hand, while accepting that the court has the power to stay proceedings for the non-payment of costs, argued that a stay should only be granted in exceptional circumstances.⁶ In summary, the Plaintiff asserted that the court should only stay proceedings in one of the following two situations: (a) where the same plaintiff having failed in one action, with costs ordered against him, brought a second action for the same cause of action without paying the costs ordered in the first action; and (b) where the non-payment of interlocutory costs orders was held to be vexatious and where innocent parties would be affected and prejudiced.⁷ In the light of the above, the Plaintiff submitted that a stay for the non-payment of costs should not be granted as “[w]hile all the … proceedings stem from the same transaction, i.e. the construction contract between the parties, the causes of action and the substance of the claims are different”⁸ [emphasis added].

I did not think, however, that the court should be constrained in the exercise of its discretion in the pedantic and technical manner advocated for by the Plaintiff. Neither should the two categories of cases identified by the Plaintiff in which a stay of proceedings had been granted be a closed list. In the present case, the Plaintiff had lost in other proceedings (ie, OS 381) and incurred costs to be paid to the Defendant. I did not think that it should be determinative that the Defendant was the claimant in the adjudication proceedings under SOPA and correspondingly the Plaintiff was the respondent. The fact remained that the Adjudication Determination, which formed the basis of OS 381, arose from the same construction contract and, at the very least, was one of the issues which would be canvassed in Suit 92. This was therefore a situation where the same parties were involved and the same subject-matter was engaged, with the SOPA proceedings being the precursor of the present proceedings to finally resolve the parties’ dispute. Hence, I found that the necessary nexus was present – OS 381 emanated from the same dispute (“the same transaction, i.e. the construction contract” as the Plaintiff stated) that animated the present Suit 92.

Ultimately, whether a stay should be granted in such a situation would depend on the justice of the case and would include considerations such as whether there had been an abuse of process although this would be balanced against the right of the defaulting party to be heard. In Roberto Building Material Pte Ltd and others v Oversea-Chinese Banking Corp Ltd [2003] 2 SLR(R) 353, the Court of Appeal made the following observation (at [19]), albeit in the context of whether a stay of an appeal for non-payment of costs in the first instance hearing should be ordered:

Accordingly, the circumstances where such an order may be made must be rare indeed. We do not wish to prejudge matters or lay down any definite considerations. It is the...