Nim Minimaart (suing as a firm) v Management Corporation Strata Title Plan No 1079 and others

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 11 October 2013
• Neutral Citation: [2013] SGCA 54
• Court: Court of Appeal (Singapore)
• Hearing Date: 04 September 2013
• Docket Number: Originating Summons No 228 of 2013
• Plaintiff Counsel: The plaintiff in person through Sambasivam s/o Kunju
• Defendant Counsel: and Teh Ee-Von (Infinitus Law Corporation)
• Subject Matter: Civil procedure,Jurisdiction,Leave to Appeal
• Published date: 17 October 2013

Sundaresh Menon CJ (delivering the grounds of decision of the court):

This matter came before us having followed a convoluted and tortuous course of litigation through various tiers of our courts over a period of more than five years. There have been many appearances before different judges and registrars. The originating summons before us concerned a number of points in relation to an appeal that the plaintiff had brought before a Judicial Commissioner of the High Court (“the JC”), seeking to reverse the decision of a district judge. We dismissed the application on the ground that we had no jurisdiction to entertain it. The plaintiff then requested us to hear further arguments. Having considered its request, we remained of the view that we had originally formed and so declined it. However, we decided we would give our grounds in order to clarify any perceived ambiguity in the law and also in the hope that this might help put an end to this litigation.

Facts Parties to the dispute

Nim Minimaart (“the Plaintiff”) is a partnership that had operated a mini-supermarket store in a condominium known as Nim Gardens (“the Development”). The Plaintiff is represented in this action, as it was in the proceedings below, by Mr Sambasivam s/o Kunju (“Mr Sambasivam”), a partner of the Plaintiff. Although Mr Sambasivam is not a lawyer, it appeared from his submissions and his letters that he either had some knowledge, albeit incomplete, about civil procedure and about the legal issues generally, or that he was receiving advice and assistance from a sympathetic lawyer working behind the scenes.

The Management Corporation Strata Title Plan No. 1079 (“the MCST”) is the management corporation of the Development. The other defendants were the council members of the MCST at the material time (collectively, “the Defendants”).

Background facts

On 15 January 2006, the Plaintiff and the MCST entered into a licence agreement. The Plaintiff was to take some premises at the Development for its business for a period of two years. The crucial clause in the licence agreement for the purposes of the entire proceedings is cl 3(d) which reads as follows: 3 In consideration of the payment by the Licensee monthly and proportionately for any part of a month for the duration of the Licence, a monthly fee of Dollars Five Hundred Only ($500.00) (hereinafter referred to as ‘the Licence Fee’) payable on the first day of each month, the Management Corporation hereby grants to the Licensee the Licence:

… (d) to extend the contract for another year (15th January 2008 to 14th January 2009) subject to revision of rental.

[emphasis added]

At the end of the initial term of two years, the Plaintiff was keen to obtain an extension but was not ultimately successful. Accordingly, on 21 April 2008, the Plaintiff commenced proceedings against the Defendants, by District Court Suit No. 1263 of 2008, for an alleged breach of the licence agreement by failing to extend the licence for a further year upon its expiry in January 2008. It appeared that there had been a change in the composition of the MCST council at about the time the renewal was due for consideration and the extension was initially agreed on a monthly basis. An exchange of letters between the Plaintiff and the Defendants ensued over a separate issue of alleged encroachment by the Plaintiff. Eventually, the managing agent appointed by the MCST proposed an extension of the licence agreement at the revised rate of $1,000 per month, which was double the rate under the original licence agreement, subject to the Plaintiff remedying the (alleged) encroachments by a certain date. This was unacceptable to the Plaintiff, who brought the action alleging a breach by the Defendants of their asserted renewal obligation under the lease and also a conspiracy among the eight council members to cause him loss. In the event the proceedings were commenced against seven of the council members and the MCST itself. The Defendants in turn claimed that Notice of Termination had been validly served on the Plaintiff on 11 April 2008 based on the latter’s failure to pay rent promptly and also for encroaching onto the common property.

The trial was fixed for hearing from 11 to 13 March 2009 before a district judge (“the first DJ”). The Plaintiff discharged its counsel on the first day of trial apparently because it could not afford to pay for continued representation. Thereafter, the Plaintiff’s case was conducted by Mr Sambasivan. On 13 March 2009, being the third day of trial, the parties concluded a settlement agreement and recorded a consent order as follows:

Settled on 3rd day of trial. With no admission of liability by either party. 1st Defendant to refund $1500 to Plaintiff being rent deposit. 1st Defendant to refund $250 being ½ month advance April rent to Plaintiff. Plaintiff granted access to minimart from 23-31 March, 0900-1700, Monday to Friday only. Upon Plaintiff vacating premises and leaving it vacant and empty, 1st Defendant shall pay the Plaintiff the aforesaid sum of $1750. Plaintiff to remove signboard. Parties to file NOD by 15.4.2008 once above terms have been abided by. Liberty to apply.

Subsequently, on 21 March 2009 the Plaintiff alleged that the first DJ had pressured it into concluding the settlement agreement by some remarks he had made during the proceedings. The Plaintiff wrote to the Registrar of the Subordinate Courts to complain about this. An official from the Subordinate Courts replied on 1 April 2009 informing the Plaintiff that it would have to apply to set aside the settlement and the consent order before a retrial could be ordered. On 9 April 2009, the Plaintiff filed Summons No. 6059 of 2009 to this end. This was heard by a Deputy Registrar of the Subordinate Courts on 29 June 2009 and it was dismissed. The Plaintiff appealed and this was heard before a district judge who dismissed the appeal on the ground that the Plaintiff ought to have commenced a fresh action to set aside the consent order. The Plaintiff appealed against this decision to the High Court, and the matter was fixed before Steven Chong J (as he then was).

Chong J heard the appeal on 7 October 2009 and gave his decision on 6 November 2009 allowing the appeal, setting aside the consent order and ordering a retrial before another district judge. The reasons for his decision are set out in Nim Minimaart (a firm) v Management Corporation Strata Title Plan No 1079 [2010] 2 SLR 1. In essence, Chong J took the view that on the basis of certain remarks that were attributed to the first DJ, it might have appeared that the first DJ had made up his mind and that there was accordingly a reasonable appearance that the Plaintiff’s consent might have been the result of undue pressure (see at [27]-[28]).

The re-trial, which spanned eight days, was heard by another district judge (“the second DJ”), who eventually dismissed the Plaintiff’s entire claim, and granted the Defendants an injunction against the Plaintiff requiring the removal of his goods from the premises as well as nominal damages of $500.00 for the Defendants’ claim in trespass.

The Plaintiff then appealed against the second DJ’s decision. The appeal (District Court Appeal No. 27 of 2011) (“DCA 27/2011”) was heard by the JC on 23 October 2012. He dismissed the appeal with costs. The Plaintiff submitted a request for further arguments on 29 October 2012 which was rejected by the JC and this was conveyed through the Registry by its letter dated 2 November 2012. Apparently intending to appeal the JC’s decision, the Plaintiff then wrote to the Registry on 7 November 2012 requesting that the requirement of security for costs which is set at $20,000.00 be waived “on compassionate grounds”. The Plaintiff advanced various reasons for this request including ostensible financial difficulties. The Registry responded on 12 November 2012 stating that the Plaintiff’s request could not be acceded to as the provision of security for costs “is a mandatory provision and cannot be waived”. The Registry also informed the Plaintiff that it should ascertain whether leave to appeal was required pursuant to s 34(2)(a) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”). As will become apparent in due course, there was some significance in the Registry having drawn this specific provision to the Plaintiff’s attention.

On 22 November 2012, the Plaintiff applied to the High Court for an extension of time to bring an application for leave to appeal to this court by Summons No. 5999 of 2012 (“SUM 5999/2012”). The JC dismissed this on 5 December 2012 with costs. It should be noted that the application for the extension of time was filed about a month after the JC had first dismissed DCA 27/2011. The relevant provision which regulates the time for making an application for leave is O 56 r 3 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”) which provides as follows: 3. Leave to appeal against order or judgment of Judge (O.56, r.3) (1) A party applying for leave under section 34 of the Supreme Court of Judicature Act to appeal against an order made, or a judgment given, by a Judge must file his application to the Judge within 7 days from the date of the order or judgment. (2) A party who has obtained leave to appeal under this Rule shall file and serve the notice of appeal within one month from the date on which such leave was given.

It will be apparent that the prescribed time frame for such an application is seven days from the date of the judgment or order being appealed against.

The Plaintiff was ambivalent before the JC as to whether or not it in fact needed leave to appeal. In any event as the JC refused to extend the time for leave to be sought, the Plaintiff had no leave to appeal against the substantive order that the JC had made when he dismissed DCA 27/2011.

The Plaintiff then sought to...