Newspaper Seng Logistics Pte Ltd v Chiap Seng Productions Pte Ltd

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean JCA
• Judgment Date: 02 February 2023
• Neutral Citation: [2023] SGHC(A) 5
• Court: High Court Appellate Division (Singapore)
• Docket Number: Originating Application No 15 of 2022
• Hearing Date: 02 February 2023
• Citation: [2023] SGHC(A) 5
• Year: 2023
• Plaintiff Counsel: Lim Bee Li and Wong Zhen Yang (Chevalier Law LLC)
• Defendant Counsel: Loh Yik Ming Michael (Clifford Law LLP)
• Subject Matter: Civil Procedure,Extension of time
• Published date: 07 February 2023

Debbie Ong Siew Ling JAD (delivering the judgment of the court): Context

The present Originating Application (“OA”) is an application by the applicant, Newspaper Seng Logistics Pte Ltd (“D”), for an extension of time to file and serve a notice of appeal out of time against the decision of the General Division of the High Court (the “High Court”) made on 22 August 2022. In Chiap Seng Productions Pte Ltd v Newspaper Seng Logistics Pte Ltd [2022] SGHC 202 at [169] (the “Judgment”), the Judge of the High Court (the “Judge”) allowed the claim of the respondent, Chiap Seng Productions Pte Ltd (“P”), for D’s intentional disposal of P’s assets.

The date of the decision of the Judge was 22 August 2022 (see [1] above). Pursuant to O 19 r 25(1)(a) of the Rules of Court 2021 (“ROC 2021”), a notice of appeal to this court should be filed and served on P within 28 days after the date of the decision. D failed to file and serve its notice of appeal within this stipulated timeframe, that is, by 19 September 2022; it attempted to file and serve a notice of appeal on 20 September 2022, which was one day after the relevant prescribed period. D's attempted filing of its notice of appeal was rejected by the Registry of the Supreme Court (the “Registry”) for being out of time. On 21 September 2022, D filed the present OA to seek an order allowing it to file and serve a notice of appeal out of time.

Legal principles and discussion of parties’ key arguments

In determining the present question of whether to grant an applicant permission to file and serve a notice of appeal out of time, the court’s power to grant permission under O 19 r 25 of the ROC 2021 is discretionary; the exercise of discretion is governed by the overriding objective of finality in litigation and by the general principles underlying the appeal regime. The well-established principles pertaining to and underlying the appeal regime are set out in Lee Hsien Loong v Singapore Democratic Party and others and another suit [2008] 1 SLR(R) 757 (“Lee Hsien Loong”). In its exercise of discretion to extend time or grant permission to file a notice of appeal out of time, the court takes into consideration all the facts and circumstances of the case to achieve a just and fair outcome, bearing in mind the principle of finality in litigation. In doing so, it is guided by the following relevant factors: (a) the length of delay; (b) the reasons for the delay; (c) the applicant’s chances of success on appeal; and (d) any prejudice that the respondent would suffer if the extension of time is granted (see Lee Hsien Loong at [18]). All four factors are equally important.

D’s case focuses on the first and second factors. It contends that its delay of one day is the clearest example of a de minimis delay. It refers to the decision of the Court of Appeal in Lee Hsien Loong (at [21]) that a de minimis delay might be excused without the need for the court to even conduct an inquiry into the reasons for that delay. In any event, D contends that the delay was attributable to a genuine mistake by its solicitor, Ms Lim Bee Li (“Ms Lim”), in assuming that the appeal against the decision of the Judge would be governed by the Rules of Court (2014 Rev Ed) (“ROC 2014”) rather than the ROC 2021. When Ms Lim discovered her error on 20 September 2022, she made a further mistake in calculating the prescribed deadline for filing and serving the notice of appeal under the ROC 2021, believing it to be 20 September 2022 instead of 19 September 2022. On 20 September 2022, the solicitors sought to file and serve D’s notice of appeal; the attempted filing was rejected by the Registry on the same day. As the ROC 2021 came into effect on 1 April 2022, D asks that this court take into account the difficulties that its solicitors faced in navigating this relatively new regime.

On the other hand, P submits that the failure of D’s solicitors to check whether the ROC 2021 applied cannot be an excuse. P also contends that allowing D’s application for an extension of time to appeal would be extremely prejudicial to P as it would result in further deterioration of the assets in question (referred to in [1] above) and cause P to suffer more financial damage. Finally, P submits that there is no serious or reasonable question or issue to be brought on appeal.

Length of delay and reasons for the delay

The date of the decision of the Judge was 22 August 2022. Applying O 19 r 25(1)(a) of the ROC 2021, the last day for D to file and serve a notice of appeal was 19 September 2022. It is not disputed that D attempted to file and serve its notice of appeal on 20 September 2022. The length of delay was one day. We accept D’s submission that a delay of one day in the context of a 28-day timeline may be considered to be a very short delay. We also note that once D was apprised of its mistake, presumably when it received notice from the Registry that its notice of appeal was rejected for being out of time, the present OA was promptly filed the next day on 21 September 2022 to seek an order allowing D to file and serve the notice of appeal out of time.

As for the reasons for the delay, D’s reason for the delay was its solicitors’ mistake in assuming that the time for filing and service of a notice of appeal was one month after the date of the decision (as explained at [4] above). The time for bringing an appeal under O 19 r 25(1) of ROC 2021, however, is 28 days.

In Lee Hsien Loong (at [22], referring to the decision of the Court of Appeal in Denko-HLB Sdn Bhd v Fagerdala Singapore Pte Ltd [2002] 2 SLR(R) 336 at [18]), the Court of Appeal stated that a mere assertion that the delay is due to the oversight of the solicitor is obviously insufficient and indeed, can lead to an abuse of process – there must be some extenuating circumstances or explanation offered to mitigate or excuse the oversight. Here, the explanation being offered relies in part on the alleged difficulties that D’s solicitors faced in navigating the relatively new regime of the ROC 2021 (see [4] above).

Ms Lim candidly explained in her affidavit that she “had wrongly assumed that an appeal [against the decision of the Judge] would also be governed by the [ROC 2014]” [emphasis added]. On this explanation, it appears to us that her mistake was not due to any real difficulty or complexity in navigating the relatively new regime of the ROC 2021, but due to her failure to consider whether it was the ROC 2014 or ROC 2021 that was applicable in the first place. Indeed, based on Ms Lim’s affidavit, it seems that when she applied her mind to that question, she realised that it was the ROC 2021 that applied and it was not her case that there was difficulty or complexity in the transitional provisions and application of the ROC 2021. Unfortunately for Ms Lim, when she discovered her error on 20 September 2022, an appeal to this court would have been out of time. We emphasise that solicitors ought to know the time frame for appeals for it is the solicitor’s duty to ensure that the client’s appeal does not become nugatory (see Tan Hock Tee v C S Tan and Co [1996] 2 SLR(R) 578 at [23]–[24]).

Ms Lim further explained her mistake in calculating the relevant prescribed deadline under the ROC 2021 (see [4] above). She explained that her confusion was due in part to the wording of O 3 r 3(3) of the ROC 2021 which stipulates that “[w]here an act is required to be done within a specified period after or from a specified date, the period begins immediately after that date”. Based on her own calculations, she believed the last day for filing to be 20 September 2022 instead of 19 September 2022. We note that this provision retains the position set out in O 3 r 2(2) of the former ROC 2014 which stipulated that “[w]here the act is required to be done within a specified period after or from a specified date, the period begins immediately after that date”. Under the ROC 2021, this means that if the date of the High Court’s judgment is 22 August 2022, the notice of appeal must be filed within 28 days after the date of the High Court’s judgment, which would be 19 September 2022. The ROC 2021 did not change the method of calculating time periods. The rules of civil procedure are sufficiently clear on the applicable time for the filing of a notice of appeal. In this regard, there is no ambiguity in how time is to be calculated under the ROC 2014 and the ROC 2021. We observe that as Ms Lim said that she only realised on 20 September 2022 that the ROC 2021 applied, her second mistake described here would make no difference, having already missed the...