Ng Chin Siau and Others v How Kim Chuan

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 27 September 2007
• Neutral Citation: [2007] SGCA 46
• Citation: [2007] SGCA 46
• Defendant Counsel: Lok Vi Ming SC, Kirindeep Singh and Mark Seah (Rodyk & Davidson LLP)
• Published date: 10 January 2008
• Plaintiff Counsel: N Sreenivasan and Collin Choo (Straits Law Practice LLC)
• Date: 27 September 2007
• Docket Number: Originating Summons No 749 of 2006 (Summons No 1083 of 2007)
• Court: Court of Appeal (Singapore)
• Subject Matter: "Appeal",Appeal under Arbitration Act,Section 49 Arbitration Act (Cap 10, 2002 Rev Ed),Recourse against award,Award,Arbitration,When residual jurisdiction could be invoked,Residual jurisdiction of Court of Appeal,Whether Court of Appeal could grant leave to appeal,Section 52(3) Arbitration Act (Cap 10, 2002 Rev Ed),Words and Phrases,How residual jurisdiction should be applied,High Court refusing leave for appeal to Court of Appeal

27 September 2007

V K Rajah JA (delivering the grounds of decision of the court):

Introduction

1 This was an application for leave to appeal to the Court of Appeal against a decision of the High Court setting aside a domestic arbitration award. At the conclusion of the hearing, we dismissed the application. These are our reasons for so ruling. In these grounds of decision, we examine the procedural pre-requisites for appeals on questions of law to the court in relation to domestic arbitration awards and, in particular, we clarify the very limited circumstances in which appeals pursuant to s 49 of the Arbitration Act (Cap 10, 2002 Rev Ed) (“the Act”) may be pursued further to the Court of Appeal.

Background and procedural history

2 The applicant/defendant, Dr How Kim Chuan (“Dr How”), and the respondents/plaintiffs were partners (in different combinations) in a number of dental practices and a business that ran a dental laboratory. A dispute arose between the parties which led to Dr How issuing a notice of retirement from the various partnerships. Subsequently, further differences and disputes arose and the parties agreed to refer these matters to an arbitrator.

3 The arbitrator issued his written award in the arbitration proceedings on 15 March 2006 (“the Award”). Dissatisfied with the decision in relation to one of the partnerships, the Hougang partnership, the plaintiffs filed an originating summons on 11 April 2006, seeking leave to appeal on two questions of law which they considered had arisen out of the Award. The judge granted them leave to appeal on only one of the questions they had raised.

4 The same judge later allowed the appeal after having decided the question raised in favour of the plaintiffs. She varied the Award and ordered that the plaintiffs pay the defendant only the sum of $54,017.47 for the Hougang partnership, in substitution of the sum of $213,333.74 that the arbitrator had originally assessed as being due. The judge then remitted the question of costs to the arbitrator for re-determination. For ease of reference, this decision of the judge will be referred to hereinafter as “the Decision”.

5 The defendant subsequently filed Summons No 4825 of 2006 on 18 October 2006 seeking leave to appeal against the Decision to the Court of Appeal. Having regard to s 49(11) of the Act (which provides that the court may give leave to appeal to the Court of Appeal against a decision on an appeal from an arbitration award only if the question of law before it is one of general importance, or one which for some other special reason should be considered by the Court of Appeal) the summons set out a list of questions of law which counsel for the defendant considered met the necessary requirements. The summons was again heard by the same judge on 2 November 2006.

6 In her judgment dated 6 March 2007 (“the 6 March decision”), the judge concluded that there was “no question of law of general importance to be brought before the Court of Appeal nor any special reason to allow the questions framed on behalf of [Dr How] to go forward on appeal” (see Ng Chin Siau v How Kim Chuan [2007] 2 SLR 789 (“Ng Chin Siau”) at [52]). Accordingly, the application was dismissed. Dissatisfied, the defendant then filed this application and requested that it be heard by the Court of Appeal.

7 Just prior to the hearing we invited counsel to make submissions on the following preliminary issues:

(a) whether an application may be made directly to the Court of Appeal for leave to appeal against a decision of the High Court on an appeal (against an arbitration award) under s 49(11) of the Act; and

(b) in any event, whether the present application could have been brought despite the fact that the High Court had already refused such leave to appeal.

8 It appeared to us that there was some confusion amongst counsel as to the proper basis for this application and the appropriate forum before which this application ought to be heard. We noted that the plaintiffs’ solicitors, M/s Straits Law Practice LLC (“SLP”) had written to the defendant’s solicitors, M/s Rodyk & Davidson LLP (“Rodyk”), on 27 March 2007 expressing, inter alia, their view that the applicable sections for an appeal from the High Court to the Court of Appeal would be ss 49(10) and 49(11) instead of s 49(7) of the Act as earlier indicated by Rodyk. SLP suggested that since leave to appeal had already been refused by the learned judge, the present summons ought to be fixed before the Court of Appeal (and not another High Court judge). Rodyk then wrote to the Registry on 5 April 2007 requesting that the summons be fixed for hearing before the Court of Appeal, stating that they had “no objections if the matter is refixed for hearing before the Court of Appeal”.

9 Thus, it appears to us that counsel themselves had initially agreed between themselves that the Court of Appeal had jurisdiction to hear such an application. We shall return to the implications of this “understanding” when we address the issue of costs. For now, we turn to consider the respective positions of the parties, as re-defined by their final submissions on the jurisdictional conundrum we had identified for counsel: see [7] above.

The defendant’s position

10 Mr Lok Vi Ming SC (“Mr Lok”), who appeared for the defendant, confirmed that the defendant’s initial application to the judge was made pursuant to s 49(11) of the Act. He clarified before us that, for the purposes of this application, he was relying solely on s 49(7) of the Act as the basis for the application to this court. This was because leave to appeal had been refused by the judge in the first instance. Mr Lok contended that s 49(7) of the Act provided a “further avenue of appeal to the defendant”. Section 49(7) of the Act reads as follows:

The leave of the Court shall be required for any appeal from a decision of the Court under this section to grant or refuse leave to appeal.

Mr Lok declared that this was his position from the outset, viz, that the application could be made under s 49(7) of the Act (to the High Court) for leave to appeal against the 6 March decision denying him leave to appeal. It was only after the plaintiffs’ solicitors had expressed their misgivings about this and suggested that the application should instead be made pursuant to ss 49(10) and 49(11) of the Act, to the Court of Appeal, that they “reached a consensus” to have the matter fixed before us.

11 Mr Lok further submitted that a “decision of the Court under this section to grant or refuse leave” would include the 6 March decision wherein the learned judge refused to grant the defendant leave to appeal against the Decision. According to Mr Lok, what it all boiled down to was this – that s 49(7) of the Act applied equally to two types of applications:

(a) the first was an application for leave to appeal against the decision of the court granting or refusing leave to appeal against an arbitration award – what he labelled as a “first-tier application”; and

(b) the second was an application for leave to appeal against the decision of the court granting or refusing leave to appeal against the decision of the Court on an appeal from an arbitration – a “second-tier application”.

Purely for the sake of convenience, we shall also adopt this terminology. The application made to this court was therefore a second-tier application.

12 At the heart of the defendant’s argument is an arid literal reading of s 49(7) of the Act. In this regard, Mr Lok invited the court to accept that it was a fundamental precept of statutory interpretation that the intended meaning of a statutory provision must be taken to punctiliously correspond with the literal meaning. Accordingly, Mr Lok argued that the literal meaning of the words “decision of the Court under this section” would mean any decision made pursuant to any subsection of s 49 of the Act, thereby encompassing the 6 March decision.

13 In the course of the hearing, Mr Lok developed this argument further. This was clearly because he had by then realised that there remained one further major obstacle he had to surmount (even assuming that his literal interpretation of s 49(7) of the Act was accepted by the court) in order to bring this application before the Court of Appeal. Mr Lok recognised and fully accepted that the “Court” referred to in s 49(7) of the Act, and indeed wherever else employed in the Act, was defined in s 2(1) of the Act to mean the High Court only. Therefore, even on the literal interpretation urged upon us, Mr Lok’s application should be made before the High Court and not the Court of Appeal.

14 In order to overcome this seemingly insurmountable difficulty, Mr Lok then boldly turned to s 52 of the Act as a crutch. So far as it is material, s 52 of the Act reads:

Application for leave of Court, etc.

52.—(1) An application for the leave of the Court to appeal or an application referred to in section 21(10), 36(6) or 49(3)(b) or (7) shall be made in such manner as may be prescribed in the Rules of Court.

…

(3) For the purposes of this section —

(a) an application for leave of the Court may be heard and determined by a Judge in Chambers; and

(b) the Court of Appeal shall have the like powers and jurisdiction on the hearing of such applications as the High Court or any Judge in Chambers has on the hearing of such applications.

Mr Lok submitted that pursuant to s 52(3) of the Act, the Court of Appeal had the like powers and jurisdiction as the High Court. This meant that once an application was made to the High Court under s 49(7) of the Act, the Court of Appeal could thereafter hear that application; this was the case here, according to Mr Lok, because his initial application was made pursuant to s 49(7) of the Act, and had been made to the High Court (albeit before an assistant registrar) on 15 March 2007.

The plaintiffs’ position

15 The plaintiffs’ position was straightforward. After receiving our...