Overseas Union Insurance Ltd v Home and Overseas Insurance Co Ltd and another application

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JC
• Judgment Date: 23 April 2002
• Neutral Citation: [2002] SGHC 83
• Docket Number: District Court Suit No 51197 of (Registrar's Appeal No 600004 of 2002) and Originating Motion No 600011 of 2002
• Date: 23 April 2002
• Published date: 17 November 2003
• Year: 2002
• Plaintiff Counsel: Liew Teck Huat (Niru & Co)
• Citation: [2002] SGHC 83
• Defendant Counsel: P Jeya Putra (Joseph Tan Jude Benny)
• Court: High Court (Singapore)
• Subject Matter: Plaintiffs seeking to appeal to High Court against district judge's decision relating to costs,Leave,District judge ruling leave to appeal necessary and refusing leave,s 50 Interpretation Act (Cap 1, 1999 Ed),Defendants applying to strike out appeal,Words and Phrases,Appeal by plaintiffs to High Court against district judge's ruling with alternative application for leave to appeal,'Amount in dispute',s 21 Supreme Court of Judicature Act (Cap 322, 1999 Ed),Whether leave to appeal necessary,Whether leave to appeal should be granted,Whether mode should be appeal or application for leave,O 2 r 1, O 3 r 2(5) & O 55C r 2 Rules of Court,Appeals,Whether application for leave out of time,Civil Procedure

Between

(REG NO. 195600074R) ... Plaintiffs

And

(REG NO. 513813) ... Defendants

ORIGINATING MOTION NO. 600011 OF 2002

of Court (Cap 322)

And

2002 in the Subordinate Courts of the Republic of Singapore
and Notice of Appeal to Judge of the High Court in Chambers
No. 600004 of 2002

Between

(UK REG NO. 513813) ... Applicants

And

(REG NO. 195600074R) ... Respondents

Citation:	DC Suit No 51197 of 1999; RAS 600004 of 2002
Jurisdiction:	Singapore
Date:	2002:03:21
Court:	High Court
Coram:	Tay Yong Kwang, JC
Counsel:	Liew Teck Huat (Niru & Co) for Plaintiffs/Respondents
	P. Jeya Putra (Joseph Tan Jude Benny) for Defendants/Applicants

HEADNOTES

Civil Procedure – Appeal – Appeal from the Subordinate Court to the High Court on taxation of bill of costs – Application of s 21 of the Supreme Court of Judicature Act (Cap 322)

Facts

There were two matters before the court. The first was Registrar’s Appeal No 600004 of 2002, which was an appeal by the plaintiffs against a decision made by a District Judge in chambers that leave to appeal was required, together with an alternative application for leave to appeal if leave was necessary. The other was Originating Motion 600011 of 2002, which was the defendant’s application to strike out the said appeal. Both concerned the scope of section 21 of the Supreme Court of Judicature Act (Cap 322) (‘SCJA’) in appeals relating to costs.

The background to the present matters was this: pursuant to the conclusion of a trial in the Subordinate Courts, the trial judge in his capacity as a Deputy Registrar taxed the bill of costs for the trial. Consequently, after a review of the taxation, the plaintiffs applied to a District Judge in Chambers (‘DJ’) for a further review of the decision, which appeal was dismissed on 2 January 2002. On 8 January 2002, the plaintiffs appealed to the High Court against the latest decision dismissing their review. However, they were directed by the DJ to seek leave to appeal first as the amount of costs in dispute was less than the statutory minimum specified in s 21 of the SCJA. The plaintiffs complied and applied on 9 January 2002 for such leave. On 28 January 2002, the DJ heard the plaintiffs’ application for leave to appeal. He refused the plaintiffs’ leave. Arising from this, the plaintiffs filed their Registrar’s Appeal on 6 February 2002 and the defendants filed their Originating Motion on 11 February 2002.

The defendants’ arguments that the Registrar’s Appeal should be struck out was this: Under O 55C r 2 of the Rules of Court, leave to appeal under s 21 of the SCJA must be obtained by filing an application to the DJ within seven days of the order, and in the event that leave was refused, by filing an application with the High Court within seven days of the refusal. What the plaintiffs did was not to file an application with the High Court within seven days of the DJ’s refusal, but rather to appeal against his decision, which was filed outside the seven-day requirement. The matter was therefore before the High Court through the wrong procedure and was also filed out of time.

As for the plaintiffs’ arguments, they argued that they were appealing against the DJ’s decision that leave to appeal was necessary, and hence O 55C r 2 did not apply. Alternatively, the technical irregularity should be disregarded in the interests of justice as permitted by O 2 r 1.

Held

(1) It was plain that in refusing leave to appeal, the DJ was proceeding on the basis that such leave was necessary. The plaintiffs could not be said to have accepted the position that leave was necessary by making the application before the DJ as they had been directed to do so. The issue was argued before him at any rate. The ruling that leave was required was not made on 8 January but on 28 January 2002. As they were appealing against the very foundation of his ruling, that is, leave was required in the first place, they could do so by way of the Registrar’s Appeal. The Registrar’s Appeal had to be issued within 14 days after the DJ’s decision under O 55C rule 1(4). That was complied with (see ¶ 13). The alternative prayer that leave should be granted in any case ought to have proceeded as a separate application pursuant to O 55C rule 2, as the defendants contended. However, since no injustice was done on the facts and the defendants were not misled as to the nature of the application, it was appropriate that the procedural irregularity should be overlooked (see ¶ 14).

(2) As for the issue of whether Registrar’s Appeal, thus treated as the plaintiffs’ application for leave if it was ruled that leave was necessary, was filed within seven days of the refusal by the DJ, this issue was answered in the positive. In the present case, s 21 of the SCJA made no mention of the time period for applying for leave to the DJ or to the High Court. Following Thomas & Betts (S E Asia) Pte Ltd v Ou Tin Joon & Anor [1998] 1 SLR 913, since the SCJA was silent as to time, the period of time for making an application under the SCJA would be computed in accordance with the Rules of Court. The period of seven days in O 55C r 2 must therefore be reckoned in accordance with O 3 r 2(5) and not the Interpretation Act (Cap 1) (see ¶¶ 15 and 16).

(3) Leave to appeal was necessary in the present instance. Following Augustine v Goh Siam Yong [1992] 1 SLR 767 and Pandian Marimuthu v Guan Leong Construction Pte Ltd [2001] 3 SLR 400, in the case of taxation of bills of costs, as the present case related to, the ‘amount in dispute’ was not the substantive claim in the action. If it were so, parties would be able to appeal to the High Court against any award of a nominal amount for a particular item in a bill in any action where the ‘amount in dispute’ in the substantive claim was above $50,000. This could not have been the intention of s 21 of the SCJA which conferred an unqualified right of appeal only in cases where the subject matter was worth more than the minimum amount stipulated. Taxation of costs was the ‘matter’ contemplated in s 21 and the ‘amount in dispute’ pertained to costs and this must be computed in the way directed by the Court of Appeal in Augustine v Goh Siam Yong (see ¶¶ 17 to 22). The amount in dispute in the present case was $10,619.65, and that was clearly below the prescribed minimum in s 21, and hence leave to appeal was necessary in this case (see ¶ 23).

(4) However, leave to appeal was refused in the present case. In taxation of costs, the key is reasonableness in principle and in quantum. The items of costs disputed related to the ‘getting up’ and fees payable to the expert witness. Even if the substantive claim was novel, it was not demonstrated how the novelty carried over to the taxation of costs incurred in defending the claim. There did not appear anything in the bill of costs which warranted the High Court’s intervention in any respect (see ¶¶ 24 to 27).

Case(s) referred to

Thomas & Betts (S E Asia) Pte Ltd v Ou Tin Joon & Anor [1998] 1 SLR 913 (folld);
Anthony s/o Savarimiuthu v Soh Chuan Tin [1989] SLR 607 (refd);
Augustine v Goh Siam Yong [1992] 1 SLR 767 (folld);
Abdul Rahman bin Shariff v Abdul Salim bin Syed [1999] 4 SLR 716 (folld);
Pandian Marimuthu v Guan Leong Construction Pte Ltd [2001] 3 SLR 400 (refd);
Goh Kim Heong and 4 Ors v AT & J Company Pte Ltd [2001] 4 SLR 262 (refd);

Legislation referred to

Interpretation Act (Cap 1) s 50
Supreme Court of Judicature Act (Cap ) s 21, s 34(1)(c);
Rules of Court Ords 1 r 3, 3 r 2(5), 55C r 2, 56 r 2, 59 r 27

Judgment

GROUNDS OF DECISION

1 Two matters were ordered to be heard together before me. The first was the Plaintiffs’ Registrar’s Appeal No. 600004 of 2002 ("the RA") which was an appeal against a decision made by a District Judge in chambers that leave to appeal was required, together with an alternative application for leave to appeal if leave was necessary. The other application was the Defendants’ Originating Motion No. 600011 of 2002 ("the OM") to strike out the said appeal. Both concerned the scope of section 21 of the Supreme Court of Judicature Act ("SCJA") in appeals relating to costs. Section 21 reads

"21(1) Subject to the provisions of this Act or any other written law, an appeal shall lie to the High Court from a decision of a District Court or Magistrate’s Court in any suit or action for the recovery of immovable property or in any civil cause or matter where the amount in dispute or the value of the subject-matter exceeds $50,000 or such other amount as may be specified by an order made under subsection (3) or with the leave of a District Court, a Magistrate’s Court or the High Court if under that amount."

2 The RA was an appeal against Ng Peng Hong DJ’s decision:

"1. finding that leave was necessary to appeal against the award on costs made by the learned District Judge (sitting as Deputy Registrar) Zainol Abideen, and affirmed by the learned District Judge Ng Peng Hong on 28.1.02; and

2. refusing to grant leave to appeal against the award on costs made by the District Judge (sitting as Deputy Registrar) Zainol Abideen, and affirmed by the learned District Judge Ng Peng Hong on 28.1.02;

and accordingly that the appeal be allowed with costs here and below."

3 The OM, filed by the Defendants as Applicants, with the Plaintiffs as Respondents, sought the following orders:

"1. The Notice of Appeal to Judge of the High Court in Chambers No. 600004 of 2002 filed by the Respondents on 6^th February 2002 be struck out;

2. The costs of and incidental to this application be fixed and paid by the Respondents to the Applicants forthwith; and

3. Such further order or relief that this Honourable Court deems fit."

FACTUAL BACKGROUND

4 The District Court suit was tried before Zainol Abideen DJ and dismissed at the conclusion of the four-day trial, with costs to be taxed if not agreed. The claim was for US$74,773 (or almost S$140,000). The Plaintiffs...