Omex Shipping Co Ltd v World Aero Supplies Pte Ltd and Another

• Jurisdiction: Singapore
• Judge: Chan Sek Keong JC
• Judgment Date: 15 July 1986
• Neutral Citation: [1986] SGHC 20
• Docket Number: Suit No 1937 of 1983
• Date: 15 July 1986
• Year: 1986
• Published date: 19 September 2003
• Plaintiff Counsel: Eddy Teng (Prakash Gurbani & Chong)
• Citation: [1986] SGHC 20
• Defendant Counsel: Harish Kumar (Haridass Ho & Partners)
• Court: High Court (Singapore)
• Subject Matter: O 18 r 5 & O 19 r 2(1) Rules of the Supreme Court 1970,Defence,Effect on filing and serving of defence,Civil Procedure,Pleadings,Court vacation,Defence not filed and served

The main issue in this appeal involves a short but unusual point of procedure and bears upon the meaning and effect of certain rules in O 18 and O 19 of the Rules of the Supreme Court 1970.

On 26 November 1985 the second defendant`s solicitors, who were in default since 25 October 1985 in serving the defence on the plaintiff, received a telex from the plaintiff`s solicitors enquiring whether the defence would be filed as a considerable time had elapsed since appearance was entered and stating that the defence ought to be filed by 29 November 1985. On 28 November 1985 the Second defendant`s solicitors requested for extension of time until the end of December 1985 to file the defence as the solicitor in charge of the matter was then on leave. The plaintiff solicitors on 30 November 1985 (which was a Saturday) refused this request and required the second defendant to file its defence before the close of 3 December 1985 failing which the plaintiff would enter judgment in default of defence. On 2 December 1985 the second defendant`s solicitors replied that their client need not file the defence in December as the court was in vacation [from 2 December 1985 until 3 January 1985] and referred to O 18 r 5. The plaintiff`s solicitors replied on 2 December 1985 reiterating that the defence was long overdue and stating that they were aware of the effect of O 18 r 5 and that the court vacation did not cut across the running time of the defence. The second defendant`s solicitors then replied on 3 December 1985 to reiterate their view that the effect of O 18 r 5 was clear and that the second defendant need not file its defence during the court vacation.

On 27 December 1985 the plaintiff`s solicitor, viz Eddy Teng Jong Pu, filed an affidavit in which he exhibited copies of the correspondence referred to in the preceding paragraph; he deposed that he had caused a search to be made in the cause book in this action and had ascertained that no defence had been filed and served and prayed for judgment to be entered in favour of the plaintiff. Judgment was so entered on that day.

On 31 December 1985 the second defendant took out an application to set aside the default judgment on the ground that it was obtained in contravention of O 18 r 5. The application came on for hearing on 7 February 1986 before the assistant registrar who dismissed the application with costs. On the same day, the second defendant filed a notice of appeal against the decision of the assistant registrar. On 17 March 1986 the second defendant succeeded in obtaining an order to stay execution on the default judgment.

The issue before me was whether the plaintiff, on 27 December 1985 was entitled under O 19 r 2(1) to enter judgment against the second defendant for failing to file its defence during court vacation. Counsel for the second defendant contended that the plaintiff was so not entitled because O 19 r 2(1) applied only to a failure to serve the defence and not to a failure to file the defence, and that the second defendant had not failed to serve its defence because O 18 r 5 prohibited it from doing so.

Counsel also referred me to O 18 r 21 [which provides that `every pleading must be filed in the Registry`] and submitted that the function of this rule,...