Ong Wui Swoon v Ong Wui Teck and another matter

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 07 August 2014
• Neutral Citation: [2014] SGHC 157
• Court: High Court (Singapore)
• Docket Number: Suit No 385 of 2011 (Registrar’s Appeal No 54 of 2014) and Originating Summons No 1187 of 2013 (Registrar’s Appeal No 72 of 2014)
• Published date: 07 August 2014
• Year: 2014
• Hearing Date: 03 March 2014,03 February 2014,19 May 2014
• Plaintiff Counsel: Carolyn Tan (Tan & Au LLP)
• Defendant Counsel: Ong Wui Teck in person.
• Subject Matter: Civil Procedure,Extension of time,Costs
• Citation: [2014] SGHC 157

Woo Bih Li J: Background

Ong Wui Swoon (“the Sister”) and Ong Wui Teck (“the Brother”) are two out of six siblings. The Sister had alleged that the Brother had failed in his duty as an administrator of their late father Ong Thiat Gan’s estate (“the Estate”) to render an accurate account of its assets. She therefore sued the Brother in Suit No 385 of 2011 asking him to render a proper account of all the Estate’s assets, and also to pay damages for his alleged breach of duty. The Sister also asserted a beneficial interest in the sale proceeds of a private property, which she claimed the Brother held on trust for their father.

On 30 October 2012, I delivered my written judgment (which was reported in Ong Wui Swoon v Ong Wui Teck [2013] 1 SLR 733 (“the Main Judgment”)). I decided that the Brother had failed to give a proper account of the assets of the Estate. I ordered the Registrar of the Supreme Court (“the Registrar”) to conduct an inquiry to determine various matters as set out at [143] of the Main Judgment. For completeness, I would mention that I dismissed the Sister’s claim for a beneficial interest in the sale proceeds of the private property mentioned above.

The inquiry was conducted before Assistant Registrar Shaun Leong (“AR Leong”) in TA 13 of 2013. On 24 September 2014, AR Leong decided that the Estate was in fact positive in the sum of $15,756.47. He ordered the Brother to pay the Sister $1,313 as her one-twelfth share of the Estate.

AR Leong also ordered that costs in TA 13 of 2013, ie, the costs of the inquiry, be agreed or taxed. This order on costs was made by consent.

Subsequently, a dispute arose as to who was liable for the costs of the inquiry. The Sister’s solicitors, Tan & Au LLP (“Tan & Au”) took the position that the Brother was liable. However, the Brother took the position that AR Leong’s costs order did not specify who was to pay the costs of the inquiry. AR Leong’s costs order merely stated that such costs were to be agreed or taxed.

On 4 December 2013, AR Leong clarified explicitly that his costs order meant that the Brother was liable to pay such costs to the Sister.

Subsequently, the Brother filed Originating Summons No 1187 of 2013 (“OS 1187/2013”) on 12 December 2013 to seek an extension of time to appeal against the decision of AR Leong.

On 24 February 2014, Assistant Registrar Una Khng (“AR Khng”) granted the Brother’s application for an extension of time to appeal. Thereafter, the Brother filed Registrar’s Appeal No 54 of 2014 (“RA 54/2014”) in Suit No 385 of 2011 on 25 February 2014 to appeal against both the substantive decision of AR Leong and his costs order.

The Sister then filed an appeal on 5 March 2014 against AR Khng’s decision to grant the Brother’s application for an extension of time to appeal. This was Registrar’s Appeal No 72 of 2014 (“RA 72/2014”).

Both RA 54/2014 and RA 72/2014 came up for hearing before me on 19 May 2014. I heard RA 72/2014 first. If that appeal was allowed in its entirety, then no extension of time would be granted to the Brother and his own appeal would fail.

After hearing arguments, I allowed the Sister’s appeal (in RA 72/2014) partially as I elaborate below.

There were two aspects to AR Khng’s decision. In allowing the Brother an extension of time to appeal against AR Leong’s decision, AR Khng had allowed the Brother an extension of time to appeal against both the substantive decision of AR Leong and his decision on costs. I set aside AR Khng’s decision to allow the Brother an extension of time to appeal against AR Leong’s substantive decision. However, I allowed the extension of time to appeal against AR Leong’s costs order to remain.

Thereafter, I proceeded to hear RA 54/2014 in respect of AR Leong’s costs order only. After hearing arguments on the quantum of costs of the inquiry, I set aside AR Leong’s costs order in that such costs were not to be taxed although the Brother was still liable to pay the costs. Since the parties obviously could not agree on the quantum of such costs, I decided to fix the quantum of the costs. I fixed it at $400 to be paid by the Brother to the Sister.

The Brother has filed two appeals against my decisions to the Court of Appeal, ie, Civil Appeal No 95 and No 96 of 2014 (“CA 95/2014 and CA 96/2014”) respectively.

The notice of appeal for CA 95/2014 states that it is against the whole of my decision (in OS 1187 of 2013) given on 19 May 2014. This is very wide and incorrect. Presumably the Brother is appealing against part of my decision only, ie, that part in which I did not allow him an extension of time to appeal against the substantive decision of AR Leong. He cannot be appealing against the other part of my decision in which I allowed the extension of time to appeal against AR Leong’s costs order to remain.

The notice of appeal for CA 96/2014 states that it is against the whole of my decision (in Suit 385 of 2011) given on 19 May 2014. Again this is very wide. Presumably the Brother wants to proceed with his appeal against the substantive decision of AR Leong since that appeal had failed because I did not allow him an extension of time to appeal against that substantive decision. It is less clear whether CA 96/2014 is also an appeal against my decision that he is still liable for the costs of the inquiry and/or the quantum of $400 I had fixed as the costs of the inquiry.

For completeness, I would mention that I ordered that each party was to bear his/her own costs of RA 72/2014 and RA 54/2014.

I set out my reasons below for my decisions.

Issue

As is evident from the above background, the issue before me for RA 72/2014 was whether the Brother should have been granted an extension of time to appeal against the two decisions of AR Leong in the inquiry. As I had not allowed him an extension of time to appeal against AR Leong’s substantive decision, that is the subject of CA 95/2014 and I will focus on that herein.

If CA 95/2014 is successful, it is up to the Court of Appeal to decide whether to remit RA 54/2014 back to me to hear the Brother’s appeal against AR Leong’s substantive decision. If CA 95/2014 is not successful, then AR Leong’s substantive decision stands.

As for CA 96/2014, two other possible issues are mentioned in [16] above. I will deal with them also in these grounds of decision.

The court’s reasons

The court should consider four main factors in an application for an extension of time to appeal. These are: the length of the delay; the reasons for the delay; the merits of the appeal; the degree of prejudice to the other side if the extension of time is granted.

In Anwar Siraj and another v Ting Kang Chung John [2010] 1 SLR 1026 (“Anwar Siraj”), the Court of Appeal (at [30]) mentioned that while these are the four relevant factors, two other considerations should not be disregarded. The first is that the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”) must prima facie be obeyed with reasonable diligence being exercised. The second is that the need for finality was a paramount consideration. The precise facts and circumstances of each case are also important, see [28] of Lee Hsien Loong v Singapore Democratic Party and others and another suit [2008] 1 SLR(R) 757.

On the length of the delay, AR Leong’s decisions were given on 24 September 2013. OS 1187/2013 was filed on 12 December 2013. This is more than two and a half months from 24 September 2013. However, under O 56 r 1(3) of the ROC, the Brother had 14 days to appeal against that decision. The 14 days would expire on 8 October 2013. Therefore, the actual delay was more than two months which is more than four times the period prescribed under the ROC.

As for the reasons for the delay, I should first set out in more detail the background and chronology leading to the Brother’s application in OS 1187/2013.

According to the notes of arguments recorded by AR Leong at the hearing on 24 September 2013, Tan & Au had asked for costs to be agreed or taxed and the Brother had agreed that costs can be agreed or taxed. Thereafter, AR Leong ordered that, “By consent, costs in TA 13 of 2013 shall be agreed or taxed”.

In such circumstances, the Brother said he did not understand AR Leong’s costs order to mean that he was liable to pay the costs of the inquiry. It was not clear from the Brother’s arguments as to whether he thought that AR Leong’s costs order meant that the Sister was to pay the costs of the inquiry or the question as to who would be liable for costs would be dealt with later. He had emphasized merely that AR Leong’s costs order did not state that he was to be liable for such costs.

On 1 October 2013, the...