Lioncity Construction Company Pte Ltd v JFC Builders Pte Ltd

• Jurisdiction: Singapore
• Judge: Tan May Tee
• Judgment Date: 05 September 2014
• Neutral Citation: [2014] SGDC 351
• Court: District Court (Singapore)
• Docket Number: DC 3371 of 2012F, Summons No. 9080 of 2014
• Year: 2014
• Published date: 10 March 2015
• Hearing Date: 05 August 2014,05 September 2014
• Plaintiff Counsel: Mr Lam Wei Yaw & Ms Thea Sonya Raman (Rajah & Tann LLP)
• Subject Matter: Civil procedure,Extension of time to file and serve notice of appeal after expiry of time prescribed in the Rules of Court
• Citation: [2014] SGDC 351

District Judge Tan May Tee: Introduction

A party who wishes to appeal against the decision of a district judge in chambers must do so within 14 days after the decision is rendered pursuant to Order 55C (“O.55C”) of the Rules of Court (“ROC”). If the time limited to appeal has expired, an application for extension of time must be made. Does the district judge in chambers have the power to grant the extension of time to appeal after the 14 days has expired? This was the preliminary issue which was raised in this case.

Upon a consideration of the applicable provisions of the ROC, I decided that a district judge did not have the power to extend time after the time limited for appeal had expired and dismissed the application. Herein are my grounds.

Background

The Defendant was the main contractor of a new hotel development comprising a block of an 11 storey building with a swimming pool, a restaurant and a basement carpark at 50 Telok Blangah Road, Singapore 098828. The Plaintiff was engaged by the Defendant as a subcontractor to carry out works in relation to the reinforcement of concrete structures and architectural works for the project. The Plaintiff commenced work on the project on 15 May 2010. On 18 January 2012, the Temporary Occupation Permit was issued by the Building and Construction Authority.

On 22 November 2012, the Plaintiff issued the writ in this action claiming the sum of $150,472.14 being outstanding payments in respect of the works carried out. The Defendant responded with a counterclaim for loss and damages suffered arising from defects in the works, and delays caused by the Plaintiff to the completion of the project as well as for overpayment made to the Plaintiff on account of inflated claims submitted.

On 15 February 2013, the Plaintiff filed an application for summary judgment on their claim. On 25 June 2013, a deputy registrar made the following orders: That judgment be entered against the Defendant under O. 14 r. 1; The Defendant to pay the Plaintiff the sum of S$143,089.75 ( the “Judgment Sum”); The Defendant to pay interest on the Judgment Sum at the rate of 5.33% per annum from the date of the Writ in the present action to the date of payment; The Defendant has unconditional leave to defend the balance claim and pursue the Counterclaim; That the execution of the above Judgment Sum be stayed pending the outcome of the action.

It appeared that the deputy registrar had derived the Judgment Sum from an internal document of the Defendant for the purposes of facilitating progress payments to the Plaintiff while the project was ongoing. After a change of solicitors, the Defendant took the position that the Judgment Sum was derived on an erroneous basis. Leave was sought and obtained for amendments to the Defence and Counterclaim. Thereafter, the Defendant applied by way of SUM 16834/2013 for an extension of time to appeal to a district judge in chambers against the summary judgment granted on 25 June 2013.

SUM 16834/2013 was fixed for hearing before another deputy registrar on 23 January 2014. At the hearing, the Defendant submitted that since the time limited to file the notice of appeal against the summary judgment had expired, the extension of time ought to be dealt with by a district judge in chambers and not a deputy registrar. The Defendant’s counsel relied on an extract from the Singapore Civil Procedure 2013 (“White Book”) paragraph 55B/1/8 which states:

Enlargement of Time – This rule must be read with O.3, r.4 so that the time limited for appeal may be extended by the registrar, and the time limited by the registrar may be extended by the judge in chambers after such time has expired or the 14 days for appealing have elapsed (see Burke v. Rooney (1879) 4 C.P.D 226).

Since there was no objection taken by the Plaintiff’s counsel, the deputy registrar adjourned SUM 16834/2013 to be heard by a district judge in chambers. SUM 16834/2013 was then fixed for hearing before me. After hearing full arguments, I granted leave to the Defendant on 9 April 2014 to file its notice of appeal against the summary judgment out of time. The Defendant accordingly filed the notice of appeal (Registrar’s Appeal RA 72/2014) on 17 April 2014.

If the Plaintiff was dissatisfied with my decision, it could appeal to a High Court Judge in chambers under O.55C within 14 days of my decision. The last day for the Plaintiff to file the notice of appeal was therefore 23 April 2014. Unfortunately, because of mistakes made in the Form, the notice of appeal was rejected twice by the State Courts’ Registry. By the time the mistake was rectified, the Plaintiff’s solicitors were out of time and the notice of appeal was again rejected. When they wanted to apply for an extension of time, they were told by the Registry that they needed to file the application in the High Court since the 14 days had expired. Mr Lam, counsel for the Plaintiff, disagreed and wrote to the Registry stating his position that the application to extend time should be heard in the State Courts. Mr Lam’s letter was referred to me for my directions and I directed that Mr Lam’s intended application be fixed before me for hearing and parties were to address the court on the preliminary issue of whether the district judge in chambers has the power to grant the extension of time under the ROC after the 14 days have expired.

Eventually, Mr Lam filed his application in SUM 9080/2014 which was fixed for hearing before me on 5 August 2014.

Plaintiff’s contention

The Plaintiff contended that the decision of Management Corporation Strata Title Plan No. 2911 v Tham Keng Mun and others [2010] SGHC 326 (“Tham Keng Mun”) supported its position that a district judge in chambers could extend the time limited under O.55C notwithstanding that such time had expired.

In Tham Keng Mun, the appellants were the subsidiary proprietors and tenants of a building who had placed objects on the driveway of the building. The respondent, the MCST, had commenced an action for an order against the appellants to remove the objects from the driveway. The appellants had counterclaimed that the respondent was in breach of its duty of care to ensure that the driveway was not obstructed and that the respondent had exercised its powers in bad faith by commencing the action against the appellants. The counterclaim was struck out by a district judge who held that the counterclaim was not within the District Court’s jurisdiction under the then Subordinate Courts Act. The appellants sought to appeal to the High Court but their notice of appeal was served out of time. The respondent filed an application to strike out the notice of appeal whereupon the appellants then filed an application for extension of time to serve the notice of appeal. The applications were fixed for hearing in the High Court before Kan Ting Chiu J together with another appeal in the same case on discovery and further particulars. Woo Bih Li J who dealt with the substantive appeal as well as an appeal against the refusal to extend time to serve the notice of appeal had at [13] of his judgment in setting out the chronology of the proceedings mentioned that Kan Ting Chiu J directed that both the applications were to be heard together in the Subordinate Courts.

Mr Lam submitted that he was guided by the direction of Kan Ting Chiu J as noted in Tham Keng Mun although he conceded that this was not a precedent since there was no written judgment dealing with the issue.

Defendant’s contention

Counsel for the Defendant, Ms Li Jiaxin, submitted that Tham Keng Mun could not be regarded as authority for the proposition that a district judge in chambers may extend the time limited under O.55C after such time had expired. From her reading of the facts in Tham Keng Mun, it appeared that Kan Ting Chiu J had directed that the summons for extension...