Ng Swee Hong v Singmarine Shipyard Pte Ltd

• Jurisdiction: Singapore
• Judge: Lai Kew Chai J
• Judgment Date: 01 June 1991
• Neutral Citation: [1991] SGCA 15
• Docket Number: Civil Appeal No 30 of 1985
• Date: 01 June 1991
• Year: 1991
• Published date: 19 September 2003
• Plaintiff Counsel: Tang Liang Hong (Tang & Co)
• Citation: [1991] SGCA 15
• Defendant Counsel: Thomas Tan Boon Yong (Haridass Ho & Partners)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether substituted service should be ordered,Civil Procedure,O 62 r 5 Rules of the Supreme Court 1970,Service,Substituted service,Effect of substituted service,Defendant out of jurisdiction

The issue in this appeal is the effect of substituted service when the defendant was out of the jurisdiction at the time the writ was issued. The facts material to this appeal are as follows.

The respondents who were the plaintiffs are shipbuilders and shiprepairers. Repairs were executed by the respondents to the vessel `Jessie I` between January and May 1984 and a sum of $1m was due to them from the owners. Guarantees were given on 12 July 1984 by the first and second defendants in consideration of the respondents agreeing to payment by instalments. The owners failed to make payment of the second instalment due on 13 September 1984. On 22 September 1984, the appellant who was the second defendant left Singapore. On 4 October 1984, the writ and statement of claim were filed. On 10 October 1984, the writ was served on the first defendant. Between 9 October 1984 and 14 October 1984, attempts were made to serve the writ and statement of claim on the appellant. On 12 October 1984, the solicitors for the appellant and the first defendants informed the respondents that the appellant had left Singapore. On 16 November 1984, on an application by the respondents, it was ordered that the service of the writ be effected on the appellant by posting a copy of the writ together with a copy of the order at No 66 Chun Tin Road, Singapore 2159 and by posting copies thereof on the notice board of the High Court. On 3 December 1984, the appellant through his solicitors entered conditional appearance. On 19 January 1984, the appellant applied for the service of the writ to be set aside. The appellant`s application was heard on 29 March 1985. After hearing the evidence of Ng Joo Siang, the son of the appellant, the learned judge dismissed the appellant`s application with costs. It was against this decision of the learned judge that the appeal was brought.

At the hearing of the appeal, counsel for the appellant referred us to several English authorities including Fry v Moore (1889) 23 QBD 395 and Field v Bennett (1886) 56 LJQB 89. Counsel submitted that, as the appellant was out of the jurisdiction at the time of issue of the writ, substituted service could not be ordered against him unless it could be shown that he was evading service, and there was no evidence on which the court could come to this conclusion. Although the appellant was a frequent traveller, his travels were not an indication that he was evading service. The learned judge had erred in not dealing with the entries in his passport. Counsel also referred us to the case of Myerson v Martin [1979] 3 All ER 667 in support of his argument. The question is whether, on the facts, substituted service was properly ordered. For this, O 62 r 5 provides as follows:

(1) If, in the case of any document which by virtue of any provision of these Rules is required to be served personally on any person, it appears to the Court that it is impracticable for any reason to serve that document personally on that person, the Court may make an order in Form 135 for substituted service of that...