Lin Jianwei v Tung Yu-Lien Margaret and another

• Jurisdiction: Singapore
• Judge: Tan Siong Thye J
• Judgment Date: 26 October 2020
• Neutral Citation: [2020] SGHC 229
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 1446 of 2018 (Summons No 3929 of 2020)
• Year: 2020
• Published date: 29 October 2020
• Hearing Date: 05 October 2020,26 October 2020
• Plaintiff Counsel: Eng Zixuan Edmund, Brinden Anandakumar, Danica Gan Fang Ling and Chang Chee Jun (Fullerton Law Chambers LLC)
• Defendant Counsel: Davinder Singh s/o Amar Singh SC, Pardeep Singh Khosa, Tan Siew Wei Cheryl, Tan Mao Lin, Delvin Chua and Kenneth Koh (Davinder Singh Chambers LLC),The second defendant absent.
• Subject Matter: Civil Procedure,Appeals,Leave
• Citation: [2020] SGHC 229

Tan Siong Thye J:

The plaintiff, Lin Jianwei, and the first defendant, Tung Yu-Lien Margaret, are the only two shareholders and directors of the second defendant, Raffles Town Club Pte Ltd. The plaintiff is the executive chairman and 60% shareholder of the second defendant. The first defendant is the director and 40% shareholder of the second defendant.

This is an application by the plaintiff who seeks a declaration that he does not require leave to appeal against the decision in Summons No 1281 of 2020 (“SUM 1281”) delivered on 27 July 2020. Alternatively, if leave is required, the plaintiff seeks an extension of time to apply for leave, and that leave be granted for the plaintiff to bring an appeal against the decision in SUM 1281.

For the purpose of Summons No 3929 of 2020 (“SUM 3929”), it is pertinent to know the background and genesis of the parties’ disputes which were first initiated by the plaintiff when he commenced Originating Summons No 1446 of 2018 (“OS 1446”) against the defendants.

The background facts OS 1446 and SUM 4

OS 1446 was commenced by the plaintiff against the defendants to, inter alia, obtain a declaration that the second defendant had validly appointed a third director or, in the alternative, to convene an extraordinary general meeting (“EGM”) to effect such an appointment.¹ The first defendant counterclaimed in OS 1446 for a declaration that several notices of EGMs and the decisions taken at those EGMs, as well as several notices of board of directors’ meetings and the decisions taken at those meetings, are invalid and of no effect.²

Subsequently, the first defendant discovered that the plaintiff’s solicitors were also representing the second defendant in OS 1446 notwithstanding the plaintiff’s action against the second defendant. The first defendant took the view that the plaintiff was acting in conflict of interest and appointed Nair & Co LLC (“N&C”) to act for the second defendant. This was vehemently objected to by the plaintiff. Hence, on 31 December 2018, the first defendant filed Summons No 4 of 2019 (“SUM 4”), seeking a declaration to the following effect: 1. A declaration that of the validly appointed directors and the shareholders of the 2nd Defendant, only the 1st Defendant was and remains entitled to decide on and engage solicitors to act for and represent the 2nd Defendant, as well as give instructions to and receive advice from such solicitors, in and in connection with HC/OS 1446 of 2018 (“OS”) and all appeals therefrom; 2. A declaration that the 1st Defendant was entitled to and did validly engage Nair & Co LLC (“N&C”), with effect from 13 December 2018, to act for and represent the 2nd Defendant, as well as to give instructions to and receive advice from N&C, in and in connection with this OS and all appeals therefrom;

…

[emphasis in original]

On 4 March 2019, the parties agreed to a consent order (“the Consent Order”) in respect of SUM 4.³ The Consent Order provided that the plaintiff’s solicitors would give the first defendant a list of 30 law firms in Singapore. The first defendant would select and engage one law firm from that list “in her discretion … in the name and on behalf of RTC [the second defendant] to act for and represent RTC, as well as to give instructions to and receive advice from such solicitors” in relation to OS 1446. The Consent Order further provided, inter alia, that: 2. … RTC will pay for all that law firm’s fees and expenses without requiring for that or for any other purpose the law firm or MT [the first defendant] to produce the instructions from MT or anyone on her behalf to the law firm, the advice from that law firm or communications, oral or otherwise, between that law firm and MT or anyone on her behalf;

…

4. Lin accepts that only MT, and anyone on her behalf, and no one else (including Lin), shall be entitled to give instructions to that selected law firm and to receive and be privy to any instructions, advice and communications, oral or otherwise, with and from that selected law firm, including but not limited to instructions, advice and communications, oral or otherwise, with and from Nair & Co LLC …

…

7. RTC shall reimburse MT for the costs incurred and paid or to be paid by her to N&C in connection with her engagement of N&C on behalf of RTC in and in connection with this OS.

From the list of law firms provided by the plaintiff’s solicitors, the first defendant appointed Joseph Tan Jude Benny LLP (“JTJB”) on 14 March 2019 to act for the second defendant in OS 1446.⁴ The inference from this Consent Order and the subsequent appointment of JTJB is that both the plaintiff and the first defendant are satisfied that JTJB represents the second defendant. The logical implication must be that the second defendant has to pay for the legal services rendered by JTJB in safeguarding its interest in OS 1446.

On 4 October 2019, the plaintiff sought leave to discontinue his claim in OS 1446 and this application was granted. However, the first defendant insisted on pursuing her counterclaim in OS 1446.⁵ Presently, pursuant to the decision in Summons No 2628 of 2020, the hearing of OS 1446 has been stayed pending the hearing of Suit No 1048 of 2018, which deals with similar issues as in OS 1446.

OS 320 and SUM 1281

On 16 March 2020, the plaintiff commenced Originating Summons No 320 of 2020 (“OS 320”), in which he sought leave to commence a derivative action on behalf of the second defendant, pursuant to s 216A of the Companies Act (Cap 50, 2006 Rev Ed) (“Companies Act”), for N&C’s and JTJB’s fees (“the Fees”) to be taxed under the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”).⁶

On 17 March 2020, the first defendant filed SUM 1281 in OS 1446 seeking reimbursement of the Fees she had paid on behalf of the second defendant to N&C and JTJB.⁷

OS 320 and SUM 1281 were heard together. On 27 July 2020, I dismissed OS 320 and allowed SUM 1281. The reasons for my decision are set out in Lin Jianwei v Tung Yu-Lien Margaret and another and another matter [2020] SGHC 158 (“the Judgment”).

The Notices of Appeal and the present application

On 12 August 2020, the plaintiff filed two Notices of Appeal in Civil Appeal No 137 of 2020 (“CA 137”) and Civil Appeal No 140 of 2020 (“CA 140”) against the decision in OS 320 and SUM 1281 respectively.⁸

On 27 August 2020, the first defendant applied to the Court of Appeal by way of Summons No 90 of 2020 (“CA SUM 90”) and Summons No 91 of 2020 (“CA SUM 91”) to strike out the Notices of Appeal in CA 137 and CA 140 respectively.⁹ This was on the basis that the plaintiff had not obtained the requisite leave to appeal against the decision in OS 320 and SUM 1281.

On 11 September 2020, the plaintiff filed SUM 3929 seeking a declaration that leave is not required to appeal against the decision in SUM 1281. In the alternative, the plaintiff seeks an extension of time to apply for leave to appeal, and for leave to appeal to be granted to the plaintiff.¹⁰ This application was filed 46 calendar days (including weekends and public holidays) after I handed down the decision in SUM 1281.

My decision The issues

The issues that arise for my determination are as follows: Whether the plaintiff requires leave to appeal against the decision in SUM 1281? If leave to appeal is required, whether the plaintiff should be granted an extension of time to apply for leave to appeal? If an extension of time is granted, whether the plaintiff should be granted leave to appeal against the decision in SUM 1281?

I shall address each of these issues in turn.

Whether leave is required

Section 34(2) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) provides that: (2) An appeal may be brought to the Court of Appeal in any of the following cases only with the leave of the High Court or the Court of Appeal unless otherwise provided in the Fifth Schedule: (a) any case where the amount in dispute, or the value of the subject-matter, at the hearing before the High Court (excluding interest and costs) does not exceed $250,000 or such other amount as may be specified by an order made under subsection (3); (b) any case specified in paragraph 1 of the Fifth Schedule.

In turn, paras 1(b) and 1(h) of the Fifth Schedule to the SCJA provide that:

Subject to paragraphs 4 and 5, an appeal may be brought to the Court of Appeal only with the leave of the High Court or the Court of Appeal, in any of the following cases: … (b) where the only issue in the appeal relates to costs or fees for hearing dates; … (h) where a Judge makes an order at the hearing of any interlocutory application other than an application for any of the following matters: ...

The first defendant submits that pursuant to paras 1(b) and/or 1(h), the plaintiff requires leave to appeal against the decision in SUM 1281.¹¹ Conversely, the plaintiff submits that leave is not required to appeal against the decision in SUM 1281 because the matter does not fall within paras 1(b) and/or 1(h).¹²

Whether para 1(b) applies

The first defendant submits that SUM 1281 is her application seeking reimbursement from the second defendant for her payment to the solicitors of the second defendant for defending the second defendant’s interest in OS 1446. The plaintiff was not against the reimbursement to the first defendant for the Fees she paid to the second defendant’s solicitors. The plaintiff opposed SUM 1281 as he opined that the Fees were excessive and he wanted to send the solicitors’ bills for taxation. The first defendant submits that the central focus or dispute in SUM 1281 is solely about costs. Hence, SUM 1281 comes within para 1(b), and leave of the court is required if the plaintiff intends to appeal.¹³ The plaintiff disagrees and raises a host of issues as follows: issues relating to the construction of the Consent Order;¹⁴ issues...