Nim Minimaart v MCST Plan No 1079

• Judgment Date: 06 November 2009
• Date: 06 November 2009
• Docket Number: District Court Suit No 1263 of 2008 (Registrar's Appeal No 106 of 2009)
• Court: High Court (Singapore)

Nim Minimaart (a firm)

Plaintiff

and

Management Corporation Strata Title Plan No 1079

Defendant

[2009] SGHC 251

Steven Chong JC

District Court Suit No 1263 of 2008 (Registrar's Appeal No 106 of 2009)

High Court

Civil Procedure–Consent order–Whether plaintiff was pressured into settlement as a result of various remarks made by trial judge during proceedings

Civil Procedure–Consent order–Whether fresh proceedings had to be commenced to set aside consent order where vitiating factor was alleged improper conduct of judge

The plaintiff was a mini-supermarket store in a condominium development and was represented in the action by Mr Sambasivam s/o Kunju ( Mr Sambasivam ) who was a partner of the firm. The first defendant was the management corporation of the condominium development. The other defendants were the council members of the first defendant. On 15 January 2006, the plaintiff and first defendant had entered into a licence agreement to lease premises for the plaintiff's business for two years. On 21 April 2008, the plaintiff commenced an action against the defendants for breach of the license agreement. The action was settled on the third day of trial. On 21 March 2009, eight days after the parties settled the dispute and recorded the terms in a consent order ( Consent Order ), Mr Sambasivam wrote to the Registrar of the Subordinate Courts to complain that he was pressurised into a settlement as a result of various remarks made by the trial judge during the proceedings. On 1 April 2009, Mr Sambasivam received a response from the Subordinate Courts that since the dispute was concluded by way of mutual settlement, the plaintiff would be required to apply to set aside the mutual settlement before a retrial could be ordered. On 9 April 2009, the plaintiff filed a summons to set aside the Consent Order and for a retrial before a different trial judge. The application was dismissed by the deputy registrar on 29 June 2009. The plaintiff appealed against the decision of the deputy registrar. The appeal was dismissed by a district judge on the ground that the wrong procedure was adopted and the plaintiff should instead have commenced a fresh action to set aside the Consent Order. The current appeal was the plaintiff's appeal against the decision of the district judge.

Held, allowing the appeal:

(1) It was the duty of a trial judge to allow a litigant to present his case and not to prejudge the merits. Remarks from a judge which might reasonably be perceived that the judge had already made up his mind before a case was closed should be avoided. Great care had to be taken by the judge not to impose any undue pressure on a party to settle a case particularly in the present case when it should have been clear to the trial judge that the plaintiff was extremely reluctant to do so: at [1] and [28].

(2) The applicable test in the present case was whether a reasonably minded person having read the remarks made by the judge would consider that there was at least an appearance that the Consent Order was brought about by judicial pressure. In the present case, there was at least a reasonable appearance that the consent by the plaintiff might have been tainted by judicial pressure: at [11] and [28].

(3) The plaintiff need not commence fresh proceedings to set aside the Consent Order. The usual requirement to institute fresh proceedings to set aside consent orders was premised on a contract having been concluded between the parties on the terms set out therein. Typically, the grounds to set side such consent orders would relate to conduct of the parties to the proceedings. However, if the alleged vitiating factor was the conduct of the judge, it would not be appropriate to commence fresh proceedings since the ground did not arise from the conduct of the other party: at [33], [34] and [37].

(4) The plaintiff could have appealed against the Consent Order. However, the plaintiff was now out of time. The court could direct the plaintiff to apply for an extension of time to file the appeal against the Consent Order. The unusual extenuating circumstances in this case would have justified the grant of such an extension of time. However, this would serve no useful purpose. It would only increase cost unnecessarily and cause further delays: at [39].

(5) This court has the power to order a retrial by virtue of O 55D r 12 (1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed). This power should only be exercised under exceptional circumstances. The circumstances in this case were compelling and warranted a retrial in the interests of justice. The Consent Order was set aside and a new trial before another district judge was ordered: at [42].

Indian Overseas Bank v Motorcycle Industries (1973) Pte Ltd [1992] 3 SLR (R) 841; [1993] 1 SLR 89 (distd)

Mohammed Ali bin Johari v PP [2008] 4 SLR (R) 1058; [2008] 4 SLR 1058 (folld)

R (A Minor) , Re (Consent Order: Appeal) [1995] 1 WLR 184 (folld)

Wiltopps (Asia) Ltd v Drew & Napier [1999] 1 SLR (R) 252; [2000] 3 SLR 244 (distd)

Rules of Court (Cap 322,R 5, 2006 Rev Ed) O 55Dr 12 (1)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) ss 22 (1) ,39 (1)

Appellant/plaintiff in person

Leo Cheng Suan and Ee-Von Teh (Infinitus Law Corporation) for the respondents/defendants.

Judgment reserved.

Steven Chong JC

Introduction

1 This case serves as a timely reminder that due process is one of the cornerstones of our judicial system. It is the duty of a trial judge to allow a litigant to present his case and not to prejudge the merits. That is not to say that in the trial process, a judge is not permitted to indicate provisional views of the evidence presented. The guidelines on the permissible limits of judicial interference are succinctly set out in the seminal decision of the Court of Appeal in Mohammed Ali bin Johari v PP [2008] 4 SLR (R) 1058 ( Johari ). However, the present case goes beyond mere judicial interference per se.It concerns the appearance of judicial pressure being brought to bear during the trial which led to an abrupt settlement. Remarks which may reasonably be perceived that the judge has already made up his mind before a case is closed should be avoided. If such observations eventually culminate in a compromise settlement, caution should be exercised to ensure that the consent is voluntary and not tainted by judicial pressure. This is particularly compelling if the litigant appears in person as is the case before me. Just to be clear, I am not suggesting that a different standard applies when a litigant appears in person. The point is that it cannot be ignored that a trained solicitor is in a better position to evaluate the import and effect of unfavourable comments or remarks from a judge. In any case, on the facts here, I would have arrived at the same outcome even if the litigant was represented by counsel. This will become apparent when the judge's remarks are examined below.

Background

2 The plaintiff firm is a mini-supermarket store in a condominium development known as Nim Gardens ( the Development ) and is represented in this action by Mr Sambasivam s/o Kunju ( Mr Sambasivam ). Mr Sambasivam is a partner of the firm. The first defendant is the management corporation of the Development. The other defendants are the council members of the first defendant. On 15 January 2006, the plaintiff and first defendant entered into a licence agreement to lease the premises for the plaintiff's business for two years.

3 Clause 3 of the licence agreement provides as follows::

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 License Fee') payable on the first day of each month, the Management Corporation hereby grants to the Licensee the Licence:

...

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

The plaintiff claimed that the first defendant refused to extend the licence agreement for a further year as provided for under cl 3 (d). Instead, the first defendant extended the licence agreement on a monthly basis at a rent of $1,000 per month. According to the plaintiff, it was unable to maintain as wide a variety of stock of goods as it used to due to the transient nature of the monthly licence. As a result, the plaintiff claimed it suffered a general loss of business. On 21 April 2008, the plaintiff commenced the action against the defendants for breach of the license...