Ong Cheng Aik v Dayco Products Singapore Pte Ltd (in liquidation)

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 16 March 2005
• Neutral Citation: [2005] SGCA 14
• Docket Number: Civil Appeal No 88 of 2004
• Date: 16 March 2005
• Published date: 17 March 2005
• Year: 2005
• Plaintiff Counsel: Francis Goh (Ari, Goh and Partners)
• Citation: [2005] SGCA 14
• Defendant Counsel: Ashok Kumar, Eugene Thuraisingam and J Sathiaseelan (Allen and Gledhill)
• Court: Court of Appeal (Singapore)
• Subject Matter: Extension of time,Appellant timeously filing notice of appeal,Civil Procedure,Appellant's application for extension of time to file record of appeal dismissed by single judge Court of Appeal,Applicable principles,Whether court should grant extension of time,Appellant appealing to full Court of Appeal,Order 57 r 9(1) Rules of Court (Cap 322, R 5, 2004 Rev Ed)

16 March 2005

Chao Hick Tin JA (delivering the judgment of the court):

1 This was a notice of motion filed by the appellant, Ong Cheng Aik, asking for an extension of time to file his Record of Appeal, Core Bundle and the Appellant’s Case in relation to his appeal in Civil Appeal No 88 of 2004. We heard the motion on 21 February 2005 and granted the application for the reasons which follow.

The background

2 The respondent, which was the plaintiff in the action below and then under liquidation, sued the appellant for breaches of fiduciary duties as its managing director in relation to certain transactions. On 2 September 2004, the trial judge found the claim proven and ordered the appellant to pay US$598,695.37 as damages, plus interest and costs. On 17 September 2004, the appellant filed a notice of appeal against the judgment.

3 By way of a notice from the Registry, the appellant was informed that, pursuant to O 57 r 9(1) of the Rules of Court (Cap 322, R 5, 2004 Rev Ed), he was required to file the Record of Appeal, Core Bundle and Appellant’s Case (for convenience they will hereinafter be referred to collectively as “the Record of Appeal”) relating to his appeal within two months thereof, ie, by 22 November 2004.

4 However, three days before the expiry date, on 19 November 2004, the appellant filed a notice of motion (Notice of Motion No 114 of 2004) seeking a 21-day extension for him to file the Record of Appeal. On 26 November 2004, the motion came before Woo Bih Li J, sitting as a single judge of the Court of Appeal pursuant to s 36(1) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“SCJA”), and he dismissed the application with costs.

5 On 29 November 2004, pursuant to s 36(3) of the SCJA, the applicant filed the present motion seeking a review by a full quorum of the Court of Appeal of the decision of the single judge.

Reasons for the application

6 We now turn to the reasons advanced by the appellant to explain why he needed an extension of time to file the Record of Appeal. The trial of the action giving rise to the judgment under appeal lasted 19 days in three tranches. The first two tranches took place in 2002 and the third in 2003. During the first two tranches the appellant was represented by Mr Michael Khoo SC (“Mr Khoo”). At the third tranche, Mr Francis Goh (“Mr Goh”) took over from Mr Khoo. The appellant was informed by Mr Goh of the Registry’s notice requiring him to file the Record of Appeal by 22 November 2004. As the appellant felt that he needed the best help to argue his appeal, he told Mr Goh not to act on the appeal and immediately set about trying to engage a Senior Counsel. He approached some of them. The problems that apparently stood in the way of those Senior Counsel acting for him were either unavailability due to other commitments or shortness of time to consider the case and prepare the Record of Appeal. The professional fees expected by them was another reason. As at 12 November 2004, a Senior Counsel was still pondering whether to take up the brief. By 16 November 2004, when the appellant did not receive a positive reply from the Senior Counsel, he went back to Mr Goh, who, in view of the shortness of time remaining to file the Record of Appeal, advised him to apply for an extension of time. This gave rise to the application in NM 114/2004.

7 It was true that on 14 October 2004, the appellant had instructed Mr Goh to apply for a stay of execution of the judgment. However, in the circumstances, we could not see who else the appellant could go to make the stay application. This could hardly mean that he did not seriously want a Senior Counsel to argue his appeal.

Applicable considerations

8 This court has in several cases laid down the factors which the court should take into account in determining whether an extension of time should be granted to enable a party to file or serve a notice of appeal out of time: see [11] below and Pearson v Chen Chien Wen Edwin [1991] SLR 212 (“Pearson”); Vettath v Vettath [1992] 1 SLR 1; The Tokai Maru [1998] 3 SLR 105; Hong Huat Development Co (Pte) Ltd v Hiap Hong & Co Pte Ltd [2000] 2 SLR 609 and Nomura Regionalisation Venture Fund Ltd v Ethical Investments Ltd [2000] 2 SLR 686. In respect of such an application for extension of time, the court takes a rather strict view of things and sufficient grounds must be shown before the court will exercise its discretion. This is because if no appeal is filed and served within the prescribed time of one month, the successful party is justly entitled to assume and act as if the judgment is final.

9 In the present case, three factors clearly stood out. First, this was not an application to obtain an extension of time to enable a notice of appeal to be filed or served out of time. Second, the application, which related to a pending appeal, was for an extension of time to file the Record of Appeal. Third, the application was made before the expiry of the prescribed time to file the Record of Appeal.

10 A useful point to start the consideration of the principles governing an application for an extension of time to do an act in relation to proceedings in court is Ratnam v Cumarasamy [1965] 1 MLJ 228, a case involving an application for an extension of time to file a record of appeal. There, the Privy Council, on an appeal from the Court of Appeal of the Federation of Malaya, said at 229:

The Rules of Court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to...