Oversea-Chinese Banking Corp Ltd v Measurex Corp Bhd

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeS Rajendran J
Judgment Date08 August 2002
Neutral Citation[2002] SGHC 173
Citation[2002] SGHC 173
Defendant CounselLee Eng Beng and Meah Tze Hua (Rajah & Tann)
Published date19 September 2003
Docket NumberSuit No 921 of 2001 (Registrar's
Plaintiff CounselJohnny Cheo (Cheo Yeoh & Associates)
Date08 August 2002
Subject MatterDefendants actually having 23 days to enter appearance,Pleadings,Whether service of writ proper,O 2 r 1 & O 20 r 11 Rules of Court,Service of writ on defendants' process agent,Deputy registrar allowing application,O 3 r 2(2) & O 12 r 4 Rules of Court,Service,Default judgment,Whether judicial managers at liberty to adopt nomination,Application by plaintiffs to amend default judgment to remove ambiguities,Defendants not entering appearance,Whether defendants' defence having real prospect of success,Nomination of process agent by plaintiffs and defendants,Amendments,Writ,Civil Procedure,Whether deputy registrar's decision justifiable,Setting aside on merits of defence,Application to set aside irregular writ,Process agent under judicial management,Whether to set aside writ,Judgments and orders,Time for entering appearance starting from day of service,Whether defendants suffering prejudice or injustice,When court can set aside irregular writ,Principles governing court's discretion to set aside default judgments,Plaintiffs obtaining default judgment,Whether defendants suffering injustice

default judgment – Whether there was merit in defence raised – Whether defence had real prospect of success.

Facts

The plaintiffs offered Measurex Engineering Pte Ltd ("M-Singapore") various banking facilities, subject to the latter procuring two Deeds of Guarantee from its parent company Measurex Corporation Berhad (‘the defendants’). Later, the plaintiffs sent to the defendants a letter demanding repayment of the loan with interest. Subsequently, the plaintiffs filed a writ against the defendants and served it on M-Singapore. M-Singapore, at the time the writ was served, was under judicial management. The judicial managers, it was alleged, did not forward or notify the defendants of the writ. The plaintiffs applied for and obtained judgment in default of appearance. The defendants appealed.

The defendants alleged that it came to know of the writ and default judgment only some time later. The defendants applied to have the writ and the service set aside on the grounds that: (a) the writ was irregular; (b) the service was irregular; and (c) the default judgment was ambiguous. Alternatively, the defendants sought to have the default judgment set aside and leave to file and serve a Memorandum of Appearance and thereafter file and serve its defence.

On (c), the plaintiffs conceded that the two paragraphs of the default judgment were ambiguous and applied to the Deputy Registrar ("DR") for leave to amend the default judgment so as to remove the ambiguity. The DR allowed this application and dismissed all applications made by the defendants with costs. The defendants appealed against the amended default judgment.

Held

, dismissing the defendants’ appeal

(1) On the scope of O 2 r 1 and O 20 r 11 of the Rules of Court, every omission or mistake in practice or procedure is to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice: Harkness v Bell followed. In this case, the amendments the DR allowed in the default judgment merely removed the ambiguity that existed in the previous default judgment, caused no injustice to the defendants and were supported and justified by Order 2, r 1, and Order 20, r 11 of the Rules of Court (see 7 and 8).

(2) A court will only set aside a writ on the grounds of irregularity if the circumstances of the case – including the nature of the irregularity – warrant such course of action. The defendants had not in any way been prejudiced by the mistaken statement on the writ that they had 21 days, counting the day of service, to enter appearance. There was no injustice caused to any party by the error in the writ and therefore it would not be set aside (see 11).

(3) There was no irregularity in the service of the writ – cl 33(2) of one of the Deeds of Guarantee specifically provided that service shall be deemed completed on delivery to M-Singapore whether or not the documents were forwarded to the defendants. OCBC had complied with the requirements of cl 33(2) (see 14).

(4) To invoke the court’s discretion to set aside the default judgment on the ground that there was merit in the defence raised, it was not sufficient for the defendants to show that they had an ‘arguable’ defence; they would have to show that the defence had a ‘real prospect of success’ and ‘carried some degree of conviction’. Under cl 8(d) of the Deeds of Guarantee, the plaintiffs’ release of the Singapore dollar guarantee given by one co-guarantor did not lead to the release of the other co-guarantor (who were the defendants) or in any other way prejudice the plaintiffs’ rights under the Deeds of Guarantees given by the defendants. There was therefore no defence to the plaintiffs’ claims under the two guarantees that had a real prospect of success (see 16,17 and 22).

Case(s) referred to

Harkness v Bell’s Asbestos and Engineering Ltd

[1967] 2 QBD 729 (folld)

Philip Securities (Pte) v Yong Tet Miaw

[1988] SLR 594 (folld)

Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co ("The Saudi Eagle")

[1986] 2 LLR 221 CA (folld)

Legislation referred to

Rules of Court 1997 O 2 r 1, O 20 r 11, O 12 r 4, O3 r 2(2)

English Rules of Court O 2

Companies Act s 227I

Judgment

GROUNDS OF DECISION Cur Adv Vult

1. The plaintiffs, Oversea-Chinese Banking Corporation Ltd ("OCBC"), by a letter of offer dated 30 April 1996, offered to Measurex Engineering Pte Ltd ("M-Singapore") various banking facilities M-Singapore was a subsidiary of Measurex Corporation Bhd ("M-Bhd"). The facilities were subject, inter alia, to M-Singapore procuring two Deeds of Guarantee (for S$3,300,000 and US$2,918,300) from M-Bhd in the form prescribed by OCBC. The Deeds of Guarantee provided, inter alia, that

    (a) a certificate by an officer of OCBC as to the monies and liabilities at any time due and owing to M-Singapore would be accepted by M-Bhd as conclusive evidence of that fact;

    (b) the guarantee shall be the primary obligation and OCBC was not obliged, before enforcing the guarantee, to make any demand on, take proceedings...

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4 cases
  • Australian Timber Products Pte Ltd v Koh Brothers Building & Civil Engineering Contractor (Pte) Ltd
    • Singapore
    • High Court (Singapore)
    • 29 d5 Outubro d5 2004
    ...in Abdul Gaffer v Chua Kwang Yong [1995] 1 SLR 484 and subsequent decisions like Oversea-Chinese Banking Corp Ltd v Measurex Corp Bhd [2002] 4 SLR 578 at 26 The defendant argues that the plaintiff’s works were incomplete and defective, which caused the defendant to incur extra expenses in t......
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    ...2 MLJ 241 (refd) Noble Lowndes and Partners v Hadfields Ltd [1939] Ch 569 (refd) Oversea-Chinese Banking Corp Ltd v Measurex Corp Bhd [2002] 2 SLR(R) 684; [2002] 4 SLR 578 (refd) Philip Securities (Pte) v Yong Tet Miaw [1988] 1 SLR(R) 566; [1988] SLR 594 (refd) Sunny Daisy Ltd v WBG Network......
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    • 8 d3 Outubro d3 2003
    ...had a “real prospect of success” and “carried some degree of conviction.” See Oversea-Chinese Banking Corp Ltd v Measurex Corp Bhd [2002] 4 SLR 578, applying Alpine Bulk Transport 16. First, the appointment of the two trustees named in the beneficiaries agreement was a condition precedent t......
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    ...Banking Corp Ltd and other appeals [2005] 1 SLR(R) 483 (“Rasmachayana”) and Oversea-Chinese Banking Corp Ltd v Measurex Corp Bhd [2002] 2 SLR(R) 684 (“OCBC”). At the end of the hearing, I invited Mr Choy to put in written submissions for the next hearing, if he thought this necessary. The d......
3 books & journal articles
  • Contract Law
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2002, December 2002
    • 1 d0 Dezembro d0 2002
    ...for reform at [29] to [31]); PT Adaro Indonesia v Rabobank[2002] 3 SLR 258; and Oversea-Chinese Banking Corp Ltd v Measurex Corp Bhd[2002] 4 SLR 578 (also referred to infra, with regard to civil procedure); and on banking generally, see supra, Chapter 4); (f) shipping (see eg, The Antares V......
  • Insolvency Law
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2002, December 2002
    • 1 d0 Dezembro d0 2002
    ...in next year”s Annual Review. Adoption of contracts by judicial managers 14.40 Oversea-Chinese Banking Corp Ltd v Measurex Corp Bhd [2002] 4 SLR 578 emphasises, in a somewhat unusual context, the simple and incontrovertible proposition that the question of the adoption of contracts by the j......
  • Civil Procedure
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2002, December 2002
    • 1 d0 Dezembro d0 2002
    ...service (particularly if the defendant had been evading service). Service 6.5 In Oversea-Chinese Banking Corp Ltd v Measurex Corp Bhd[2002] 4 SLR 578, the parties agreed that in the event of a dispute, service was to be effected on a “process agent”. Therefore, service on the process agent ......

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