Mohamed Nizam s/o Mohamed Ismail v Sadique Marican Bin Ibrahim Marican and Others

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 29 October 2008
• Neutral Citation: [2008] SGHC 189
• Court: High Court (Singapore)
• Year: 2008
• Published date: 30 October 2008
• Plaintiff Counsel: Mahendran, K Mathialahan (Guna & Associates Advocates & Solicitors)
• Defendant Counsel: Sadique Marican, Anand Kumar s/o Toofani Beldar (Frontier Law Corporation)
• Subject Matter: Civil Procedure
• Citation: [2008] SGHC 189

29 October 2008

Judith Prakash J:

Introduction

1 This action was started by Mohamed Nizam s/o Mohamed Ismail (“the plaintiff”) to recover damages for negligence and/or for breach of contract from Sadique Marican bin Ibrahim Marican and two others (“the defendants”). In due course, the plaintiff filed Summons No 2354 of 2008 (“SUM 2354/2008”), an application for summary judgment against the defendants pursuant to O 14 of the Rules of Court (Cap 322, R5, 2006 Rev Ed) (“ROC”). This application was heard by Assistant Registrar Leong Kwang Ian (“the AR”) who dismissed a preliminary objection by the defendants that the summons and supporting affidavit (in relation to SUM 2354/2008) had been served on them out of time and hence should not be heard. While the AR was prepared to consider the substantive merits of SUM 2354/2008, this hearing did not proceed at that time as the AR gave the defendants leave to file a further affidavit.

2 Being dissatisfied with the AR’s decision, the defendants appealed. The appeal essentially turned on two related questions: (a) whether the court has discretion to extend time for service of an O 14 summons and supporting affidavit; and (b) even if the answer to (a) was negative, whether the defendants in the present case nonetheless waived the irregularity by taking a step in the proceedings. I dismissed the appeal with costs fixed at $1,500. The defendants have since appealed against my decision.

The facts

3 The writ was filed on 10 March 2008. Service was effected on the first and second defendants on 18 March 2008. The two defendants entered appearance on 20 March 2008 and the memorandum of appearance was served on the plaintiff on 25 March 2008. The defendants filed a joint defence on 11 April 2008. The plaintiff’s reply was served on the defendants on 24 April 2008.

4 SUM 2354/2008 and the supporting affidavit were filed on 29 May 2008 and served on the first and second defendants on 4 June 2008, with the summons having been fixed for hearing on 2 July 2008. The plaintiff later filed a supplementary affidavit on 4 June 2008 and this was served on the defendants on 6 June 2008.

5 The first and second defendants did not file any show cause affidavit by 2 July 2008, the scheduled date of the hearing. On this day, the second defendant appeared before another Assistant Registrar and informed her that he was representing the first and second defendants. He sought an adjournment to file the show cause affidavit. The matter was adjourned to 18 July 2008 with directions that the first and second defendants file the show cause affidavit by 8 July 2008 and that the plaintiff file his reply affidavit (if any) by 16 July 2008.

6 The show cause affidavit was eventually served on the plaintiff on 10 July 2008. The plaintiff duly filed a reply affidavit on 16 July 2008 and this was served on the first and second defendants the following day. Thereafter, SUM 2354/2008 was proceeded with and was heard by the AR on 18 July 2008.

Hearing before the AR on 18 July 2008

7 Before the AR, the defendants raised the preliminary objection that the plaintiff had failed to comply with the timelines prescribed under O 14 of the ROC. Specifically, they submitted that the plaintiff had failed to comply with the requirement that the summons (and the supporting affidavit) be served not more than three days after filing as the summons (and the supporting affidavit) in the present case had been filed on 29 May 2008 and only served four days later on 4 June 2008. The service was therefore one day out of time.

8 The defendants submitted that O 14 r 2(2) required technical compliance and that the court had no power to extend time for service. They pointed to the draconian nature of the summary judgment procedure to justify their proposition of the strictness of service timelines. On the other hand, the plaintiff considered that the service out of time was an irregularity that could be regularised by way of application and an adverse costs order, pointing out that there was, in any case, no real prejudice caused to the defendants as the time for service of the show cause affidavit started to run only after service of the summons and supporting affidavit. Thus, whether the summons was filed three or four days after the initial filing, the defendants would still be entitled to the full 14 days in which to file their show cause affidavit.

9 After considering the arguments of the parties, the AR dismissed the defendants’ preliminary objection, holding that:

I do not read Order 14, rule 2(7) as a bar to the court’s power to extend the time for service of the SUM. Sub-rule 7 merely deals with costs, and it implies that there is a power to extend time for the filing & service of the affidavits. There is thus no express rule which prohibits the court from extending the time for service of the Order 14 SUM. In fact, sub-rule 7, by implying that the court has power to extend time for the filing & service of the affidavits, would also lend weight to the court’s power to extend time for the service of the SUM as well.

This case is thus distinguishable from CCR Pte Ltd v Samsung Corp. In that case, there was a clear stipulation in the rules that no Order 14 application be made before Defence is filed. There was a clear reason for that rule, which the case went into.

In our present case, I invited the 1^st Df to explain to me the rationale of the 3-day rule. I am not satisfied with the rationale for the 3 day rule provided by the 1^st Df. If it were indeed an inflexible rule purely because of the draconian nature of the order, then there would also be no room for extension of time for the filing of affidavits, which, as I have noted earlier, appears to be an implied power clearly brought in by sub-rule 7.

Secondly, I also note that the 1^st Df has filed an affidavit contesting the Order 14 application on the merits. This step in the proceeding, in my view, constitutes a waiver of the preliminary objection which he is now taking. For example, if one is contesting jurisdiction of the court, one does not take a step in the proceedings by filing a Defence. Similarly, in our case, I think that the 1^st Df’s filing of a substantive affidavit to defend against the Order 14 SUM is a step in the proceedings which precludes him from now arguing that the 3-day service requirement has not been met.

I will proceed to hear the SUM.

Although the AR indicated that he was going to hear the substantive merits of SUM 2354/2008, the AR subsequently gave the defendants leave to file a further reply affidavit and hence SUM 2354/2008 was not proceeded with on 18 July 2008. Before the next hearing in relation to SUM 2354/2008, the defendants filed this appeal against the AR’s decision to allow the plaintiff to file the summons and supporting affidavit one day out of time.

Whether the court has discretion to extend time for service of an O 14 summons and supporting affidavit

10 The first issue I had to decide was whether the court has discretion to extend time when an applicant in an O 14 application fails to serve the summons and/or supporting affidavit within the three days stipulated in O 14 r 2(2). If the court has no discretion to extend time in this situation, then the AR’s decision below would be wrong.

11 Order 14 r 2(2) provides for specific timelines for the filing and service of the summons and supporting affidavit:

Manner in which application under Rule 1 must be made (O 14, r 2)

(2) The summons and the supporting affidavit or affidavits must be filed at the same time, and must be served on the defendant within 3 days from the date of filing.

Order 14 r 2(7) in turn provides as follows:

(7) Where a party files or serves an affidavit beyond the period of time specified in this Rule, the Court may make such order as to costs against that party as it considers fit.

12 The provisions speak for themselves. Whilst O 14 r 2(2) uses the apparently mandatory word “must” in stipulating the time period for service of the summons and the supporting affidavit, it does not follow as a matter of course that the court had no power to allow for extension of time or that the proceedings would thereafter become a nullity. Indeed, the second of these propositions is addressed directly by O 2 r 1(1) which provides as follows:

Non-compliance...