Milaha Explorer Pte Ltd v Pengrui Leasing (Tianjin) Company Ltd

JudgeAndrew Phang Boon Leong JCA
Judgment Date25 January 2022
CourtCourt of Appeal (Singapore)
Docket NumberOriginating Summons No 31 of 2021
Milaha Explorer Pte Ltd
and
Pengrui Leasing (Tianjin) Co Ltd

[2022] SGCA 9

Andrew Phang Boon Leong JCA

Originating Summons No 31 of 2021

Court of Appeal

Courts and Jurisdiction — Judges — Transfer of cases — Parties not disputing appeal filed inadvertently to Appellate Division of High Court should be heard by Court of Appeal — Respondent arguing appeal not in existence as it was pending striking out for lack of leave to appeal — Whether such appeal could and should be transferred — Section 29C(2) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Held, allowing the application to transfer the appeal to the Court of Appeal:

(1) If leave to appeal was required, it was to be sought from the Court of Appeal, which was the correct “appellate court” under paras 1 and 3 of the Fifth Schedule to the SCJA, read with para 1(c) of the Sixth Schedule to the SCJA: at [7].

(2) The correct “appellate court” as defined under the Fifth Schedule to the SCJA needed to be determined first, before striking out or leave to appeal applications could be made to and/or decided by that court. The respondent's argument that AD 118 was invalid and was not an appeal in existence proceeded on the false premise that SUM 35 was already before the correct “appellate court” pursuant to paras 1 and 3 of the Fifth Schedule to the SCJA. Since the respondent acknowledged that the appeal should be before the Court of Appeal instead of the AD, it could not use the fact that AD 118 was pending striking out before the AD to argue that AD 118 was invalid and was not an appeal in existence. This put the cart before the horse. Instead, the proper course of action was to transfer AD 118 from the AD to the Court of Appeal, and for the Court of Appeal to hear SUM 35 on the striking out of AD 118 for lack of leave to appeal thereafter: at [8] and [9].

(3) The suggestion that the applicant should file a fresh appeal ignored the potential prejudice that would be caused to the applicant as the time for filing a notice of appeal had already lapsed. The applicant would need to file an application for the extension of time to file an appeal, before filing a fresh notice of appeal. This was a circuitous route that would only waste costs and time for the parties and militated against the efficient administration of justice. The provisions in the SCJA relating to transfers sought to resolve cases where the appeal was filed to the wrong appellate court without causing such prejudice to applicants: at [10].

[Observation: Counsel were reminded that they should always be guided by...

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