Management Corporation Strata Title Plan No 2911 v Tham Keng Mun and others

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Woo Bih Li J
• Judgment Date: 02 November 2010
• Neutral Citation: [2010] SGHC 326
• Citation: [2010] SGHC 326
• Defendant Counsel: David Liew (Lawhub LLC)
• Published date: 05 April 2011
• Plaintiff Counsel: Carolyn Tan and Tony Au (Tan & Au LLP)
• Hearing Date: 26 July 2010,05 July 2010,21 September 2010,10 August 2010
• Docket Number: District Court Suit No 2855 of 2006/P (RAS No 62 of 2010 and RAS No 161 of 2009)
• Date: 02 November 2010
• Subject Matter: Civil Procedure,Extension of Time,Jurisdiction

Woo Bih Li J: Background

These two appeals arose out of a District Judge’s decision to strike out a counterclaim on the ground that the District Court did not have jurisdiction over the counterclaim. The appellants filed a notice of appeal by way of Registrar’s Appeal No 161 of 2009 (“RAS 161/2009”) (“the First Appeal”) against that decision. However, the appellants failed to serve the First Appeal on the respondent within the time required under the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (the “Rules of Court”). The respondent then applied for the First Appeal to be struck out while the appellants applied for an extension of time to serve the First Appeal. The same District Judge dismissed the appellants’ application for extension of time to serve the First Appeal and struck out the First Appeal on the ground that it was not served on time. The appellants then filed a notice of appeal by way of Registrar’s Appeal No 62 of 2010 (“RAS 62/2010”) (“the Second Appeal”) against the decision to dismiss the application for extension of time to serve the First Appeal and to strike out the First Appeal.

Both appeals came before me. I allowed the appeals. I now give my grounds of decision.

Facts

The respondent is the management corporation for a building known as LW TECHNOCENTRE (“the Building”), which is located at 31 Toh Guan Road East, Singapore 608608.

Tham Keng Mun and Sum Yuet Leng, respectively the first and second appellants, are subsidiary proprietors of unit #02-05 at the Building. The third appellant, Eltron Engineering Pte Ltd, is the tenant of the Unit.

The appellants placed objects on a driveway outside the Unit (“the Driveway”). The Driveway is part of the common property of the Building.

On 27 July 2006, the respondent commenced an action against the appellants in the District Court for occupying the Driveway without obtaining the respondent’s license, authorisation or approval. The respondent claimed for, inter alia, an order that the appellants remove all objects from the Driveway, possession of the Driveway and for damages, including mesne profits.

On 15 August 2006, the appellants filed a defence and counterclaim. In their counterclaim (“the Counterclaim”), the appellants made the following averments: the respondent breached its “duty of care in law to the subsidiary proprietors” to ensure that the common property, including the Driveway, was not obstructed to partially deprive the subsidiary proprietors of use of the common property; and by commencing action against the appellants, the respondent “arbitrarily exercised [its] powers in bad faith with the intention to cause loss and damage” to the appellants. The appellants claimed an order that the respondent procure and ensure that all objects placed on the common property be removed and for damages for the loss of use of the common property.

On 4 September 2009, in the course of hearing interlocutory appeals, Tan May Tee DJ (“the District Judge”) asked for submissions on whether the District Court had jurisdiction over the respondent’s claim and the Counterclaim.

On 8 December 2009, after hearing submissions, the District Judge held that the District Court did not have jurisdiction over the Counterclaim and so she struck out the Counterclaim (“the First Decision”). The District Judge did not give any grounds for the First Decision.

On 21 December 2009, the appellants filed the First Appeal. The Subordinate Courts Registry issued it on 30 December 2009.

The appellants served the notice of appeal on the respondent on 20 January 2010 via a fax transmission. The appellants also served the notice of appeal on the respondent by hand on 22 January 2010.

On 22 February 2010, the respondent applied via Summons No 2843 of 2010 (“SUM 2843/2010”) to strike out the First Appeal on the ground that it was not served on the respondent within seven days of it being issued, as provided under O 55C, r 1(4) Rules of Court. The following day, on 23 February 2010, the appellants applied via Summons No 2944 of 2010 (“SUM 2944/2010”) for an extension of time for the service of the First Appeal. The Subordinate Courts Registry fixed both summons before the High Court, together with another appeal in the same case on discovery and further and better particulars.

On 3 March 2010, Kan Ting Chiu J directed that both SUM 2843/2010 and SUM 2944/2010 were to be heard together in the Subordinate Courts.

On 7 April 2010, the District Judge dismissed the application for extension of time and struck out the First Appeal (“the Second Decision”). The District Judge did not give any grounds for the Second Decision.

On 21 April 2010, the appellants filed the Second Appeal. The Second Appeal was duly served on the respondent within the time required under the Rules of Court.

Both the First Appeal and the Second Appeal came before me.

The Second Appeal (RAS 62/2010) The law on extension of time for service of a notice of appeal

The factors that the court considers in determining whether to extend time for the filing or service of a notice of appeal are well established and were recently concisely stated by the Court of Appeal in Anwar Siraj and another v Ting Kang Chung [2010] 1 SLR 1026 (CA) (“Anwar Siraj”) in the following manner (at [29]-[30]):

Considerations in exercising discretion to extend time

29 The principles which apply to determine whether the court should exercise its discretion to extend time to file a notice of appeal or to serve a notice out of time are well established in case law. The modern approach taken by this court to this question may be found in its decision in Pearson v Chen Chien Wen Edwin [1991] 2 SLR(R) 260 . There are four factors which the court would consider in determining how the discretion should be exercised. These are: (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if time for appealing is extended; and (d) the degree of prejudice to the would-be respondent if the application is granted. But we would emphasise that this is not a numbers game. The significance of each factor must depend on its facts and circumstances of the case. In the final analysis, the applicant for an extension of time must show grounds sufficient to persuade the court to extend its sympathy to him.

30 While these are the factors which are relevant to the court in determining how its discretion should be exercised, there are two other considerations which should nevertheless not be disregarded. In Linda Lai ([25] supra) at [45], relying on the Privy Council decision in Thamboo Ratnam v Thamboo Cumarasamy and Cumarasamy Ariamany d/o Kumarasa [1965] 1 WLR 8 at 12, this court held that when applying these factors, the court should nevertheless bear in mind the fact that the overriding consideration was that the ROC must prima facie be obeyed, with reasonable diligence being exercised. Second, in The Melati [2004] 4 SLR(R) 7 at [37], this court underscored the point that the need for finality was a "paramount consideration".

I will elaborate on each factor below.

My Decision on the Second Appeal The length of the delay

The first factor requires the court to consider the length of the delay in serving the notice of appeal. If the delay were de minimis, it might be excused without the court having to consider the reasons for the delay in detail (see Lee Hsien Loong v Singapore Democratic Party and others and another suit [2008] 1 SLR(R) 757 at [21] (“Lee Hsien Loong”)). However, if the delay were more substantial, the court should consider the reasons for the delay in detail (see Lee Hsien Loong at [22]).

As provided by O 55C, r 1(4) Rules of Court, the appellants should have served the notice of appeal on the respondent within seven days of it being issued. The notice of appeal was issued on 30 December 2009. Under O 3, r 2(5) Rules of Court, if a period of time fixed for the doing of an act is a period of seven days or less, a day other than a working day should be excluded in the reckoning of the period of time. Since 31 December 2009, 1 January 2010, 2 January 2010, 9 January 2010 and 10 January 2010 were not working days, the appellants should have served the notice of appeal by 11 January 2010.

The appellants’ solicitors only served the notice of appeal on the respondent’s solicitors on 20 January 2010 via a fax transmission. The notice of appeal was also served by hand on 22 January 2010.

It was necessary for me to determine whether service was effected on 20 January 2010 or 22 January 2010. Order 62, r 6 of the Rules of Court governs the mode of service for documents for which personal service is not required. The relevant provisions of that rule are as follows: (1) Service of any document, not being a document which by virtue of any provision of these Rules is required to be served personally, may be effected — (a) by leaving the document at the proper address of the person to be served; (b) by post; (c) by FAX in accordance with paragraph (3); (d) in such other manner as may be agreed between the party serving and the party to be served; or (e) in such other manner as the Court may direct.

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(3) Service by FAX may be effected where — (a) the party serving the document acts by a solicitor; (b) the party on whom the document is served acts by a solicitor and service is effected by transmission to the business address of such a solicitor; (c) the solicitor acting for the party on whom the document is served has indicated in writing to the solicitor serving the document that he is willing to accept service by FAX at a specified FAX number and the document is transmitted to that number; and for this purpose the inscription of a FAX number on the writing paper of a solicitor shall be deemed to indicate that such a solicitor is willing to accept service by FAX at that number in...