Nomura Regionalisation Venture Fund Ltd v Ethical Investments Ltd

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 13 March 2000
• Neutral Citation: [2000] SGHC 36
• Docket Number: Suit No 623 of 1998
• Date: 13 March 2000
• Published date: 19 September 2003
• Year: 2000
• Plaintiff Counsel: Ang Cheng Hock and Bernice Loo (Allen & Gledhill)
• Citation: [2000] SGHC 36
• Defendant Counsel: Terence Teo (Chee & Teo)
• Court: High Court (Singapore)
• Subject Matter: O 3 rr 2(5) & 4, O 56 r 1(3) Rules of Court(1997 Rev Ed),Relevant principles governing extension of time,Mistake of solicitor's employee,O 3 rr 2(5) & 4, O 56 r 1(3) Rules of Court (1997 Rev Ed),Whether "special circumstances" to be shown,Civil Procedure,Notice of appeal,Serving notice of appeal on wrong party,Extension of time for service of notice of appeal,Appeals,Whether circumstances justify exercise of discretion to extend time

: This was an application by the defendants for an extension of time to serve the notice of appeal in RA 514/99 (the appeal) and for the late service of the notice of appeal on the plaintiffs` solicitors M/s Allen & Gledhill, to be deemed proper service. After hearing the arguments, I granted the defendants` application and adjourned the hearing of the appeal; the plaintiffs have now appealed against my decision (in CA 12/2000).

The facts

The plaintiffs are a venture company incorporated in Singapore. The defendants agreed to subscribe for 50 units of shares in the plaintiffs at US$100,000 per unit. The shares were allotted to the defendants. The defendants paid US$2.5m as the first instalment for the shares. On 30 April 1997, the plaintiffs gave written notice for the payment of the second instalment of the subscription monies in the sum of US$2.5m. After a further written demand from the plaintiffs dated 17 June 1997, the defendants made part-payment of $500,000 but not the balance of $2m.

Consequently, the plaintiffs commenced an action against the defendants claiming specific performance of the agreement and for damages. Summary judgment was granted in favour of the plaintiffs and specific performance of the agreement was ordered. However, the defendants failed to comply with the order for specific performance. On the plaintiffs` application, the order for specific performance was discharged on 12 March 1999 and the parties were ordered to proceed with the assessment of damages.

Before the damages were assessed, the plaintiffs forfeited the shares allotted to the defendants pursuant to their articles of association. The defendants then applied for relief against forfeiture and for the plaintiffs to expedite their assessment of damages; the application was dismissed on 3 December 1999 and the appeal was the defendants` against that decision.

On 13 December 1999, the defendants` previous solicitors M/s Drew & Napier filed the notice of appeal on the defendants` behalf. On 16 December 1999, the defendants` present solicitors took over the conduct of the matter. Although the notice of appeal was filed in time, it was not served on the plaintiffs` solicitors until 7 January 2000 contrary to O 56 r 1(3) read with O 3 r 2(5) of the Rules of Court, which required the defendants to serve the notice of appeal within seven days of filing (excluding weekends and public holidays), namely, by 22 December 1999.

The solicitor in charge of the appeal (Teo Chee Seng) filed an affidavit on 10 January 2000 explaining the default. He stated that he had specifically instructed the litigation secretary of his firm to serve the notice of appeal and the notice of change of solicitors on M/s Allen & Gledhill. He assumed she had complied with his instructions; he had even telephoned her from Hong Kong to confirm that she had done so. However, on 7 January 2000, he discovered that the papers were wrongly served on M/s Drew & Napier. According to him, the litigation secretary said that the court clerk was on leave and she had told the despatch clerk to serve the papers instead. She also admitted that she had given the wrong instructions to the despatch clerk. Later that day at about 6pm, Teo Chee Seng instructed one of his staff to immediately serve the relevant papers on M/s Allen & Gledhill. Service having been effected after 4pm, it meant that it was deemed to have been served on the following day, namely, 8 January 2000 which was a Saturday.

The plaintiffs opposed the application on the ground that there were no `special circumstances` on the facts of this case which warranted the exercise of the court`s discretion to extend time. In particular, they contended that the mistake of the defendants` solicitors or their employees in not effecting proper service is not a ground for extending time. Their counsel cited the following authorities in support of their submissions: Cheah Teong Tat v Ho Gee Seng & Ors [1974] 1 MLJ 31 and [1975] 2 MLJ 149; Tan Chai Heng v Yeo Seng Choon SLR 381 ; Re Coles and Ravenshear [1907] 1 KB 1; Vettath v Vettath [1992] 1 SLR 1 ; and Chin Hua Sawmill Co Sdn Bhd v Tuan Yusoff bin Tuan Mohamed [1974] 1 MLJ 58 .

I overruled the plaintiffs` objections as, in my view, the cases cited by counsel were not directly in point. In Re Coles and Ravenshear , counsel for the appellant sought an extension of time to file the notice of appeal after he had taken an erroneous view that the appeal need not be brought within a certain period of time. The application was refused by the English Court of Appeal on the ground that a mistake on the part of the solicitor was not sufficient to warrant an extension of time. It is pertinent to note that the court in that case was interpreting the existing O 58 r 15 of the English rules which provided that `special leave` of the Court of Appeal was required before an appeal can be brought out of time. Similarly, the Malaysian Federal Court in Chin Hua Sawmill Co Sdn Bhd v Tuan Yusoff bin Tuan Mohamed interpreted r 13 of the Federal Court (Civil Appeals) (Transitional) Rules of 1963 which was in pari materia with the English provision.

In Cheah Teong Tat v Ho Gee Seng & Ors , Syed Agil Barakbah J held that an applicant must show `special circumstances` upon which the court can exercise its discretion for an extension of time. On the facts, he held that the mistake of the applicant in not realising the time-frame in which he must serve the notice of appeal was not sufficient. His decision was affirmed on appeal to the Federal Court. In the course of his judgment, the learned judge observed that the English position had been altered since 1909 and `special leave` was no longer required to bring an appeal out of time. He went on to hold that the pre-1909 English position as enunciated in the decision of Re Coles and Ravenshear nonetheless remained relevant because no similar amendments were made to the Rules of the Supreme Court 1950.

In contrast,...