Panin International Credit (S) Pte Ltd v Ngan Ching Wen

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 10 November 2010
• Neutral Citation: [2010] SGHC 332
• Plaintiff Counsel: Phua Siow Choon (Michael BB Ong & Co)
• Docket Number: Suit No 1404 of 1999 (Registrar’s Appeal No 600002 of 2010)
• Date: 10 November 2010
• Hearing Date: 14 October 2010,29 October 2010
• Subject Matter: Civil Procedure
• Published date: 15 November 2010
• Citation: [2010] SGHC 332
• Defendant Counsel: Tan Tian Luh (Chancery Law Corporation) and Ng Hweelon (Legal Clinic LLC)
• Court: High Court (Singapore)
• Year: 2010

Woo Bih Li J: Introduction

This was an appeal by Ngan Ching Wen (“Ngan”) against the decision of Assistant Registrar Jordan Tan (“AR Jordan Tan”) in Summons No 600081 of 2010, in which AR Jordan Tan set aside the orders made by Assistant Registrar Then Ling (“AR Then Ling”) in Summons No 600063 of 2010, re-heard Summons No 600063 of 2010, and ordered, inter alia, that the judgment dated 22 December 1999 entered against Ngan in default of Ngan’s appearance in Suit No 1404 of 1999 (“the Judgment”) be set aside. Panin International Credit (S) Pte Ltd (“Panin”) did not appeal against AR Jordan Tan’s dismissal of Panin’s application for leave to enter a fresh default judgment against Ngan but Ngan appealed against AR Jordan Tan’s decision to set aside the Judgment. Summons No 600063 of 2010 was an unusual application by a plaintiff, ie, Panin, to set aside a default judgment that the plaintiff itself had entered against a defendant, ie, Ngan.

I dismissed Ngan’s appeal on 29 October 2010.

Background

A detailed chronology of events is annexed at Schedule 1 below. This is based on a table of chronology helpfully prepared by counsel for Panin. Crucially, Panin entered the Judgment on 22 December 1999. On 16 February 2000, it applied to register the Judgment in Malaysia. The Judgment was registered in Malaysia on 9 April 2001. Notice of registration of the Judgment was served on Ngan on 6 February 2004. Suit No 1404 of 1999 is a moneylender’s action and, pursuant to O 79 r 4 of the Rules of Court (Cap 322, R5, 1999 Rev Ed) in Singapore (“Singapore ROC 1999”), leave of the Court was required before the Judgment could be entered. Panin had not applied for such leave and this irregularity was raised by Ngan on 19 November 2001.

Between 2001 and 2009, Ngan contested the registration of the Judgment via an application to strike out Panin’s application to register the Judgment and, when this eventually failed, via applications to set aside both the registration of the Judgment and the service of notice of registration of the Judgment. Ngan’s applications to set aside both the registration of the Judgment and the service of notice of registration of the Judgment were dismissed by the Senior Assistant Registrar (“SAR”) in Malaysia on 22 December 2004 and Ngan’s appeals against the SAR’s decision were dismissed by the Malaysia High Court on 15 August 2007. On further appeal by Ngan (in Civil Appeal Nos. W-03-157-2007 and W-03-159-2007), however, the Malaysia Court of Appeal (by a majority) allowed the appeals on 26 November 2009 and set aside the registration of the Judgment. According to Ngan’s written submissions dated 20 September 2010 and the affidavit of Panin’s Malaysia solicitor filed on 3 June 2010, the reason for the Malaysia Court of Appeal’s decision was that the Judgment had been entered without leave of the Singapore High Court, in contravention of O 79 r 4 of the Singapore ROC 1999. Panin’s application for leave to appeal to the Malaysia Federal Court was dismissed on 17 May 2010.

Panin had also filed a Bankruptcy Notice against Ngan in Malaysia on 28 October 2008 but this was successfully set aside by Ngan before the SAR on 10 September 2009. Whilst Panin had filed an appeal against the SAR’s decision, this appeal was withdrawn on 4 February 2010.

Whilst the parties had engaged in litigation in the courts of Malaysia on the registrability of the Judgment, between 2001 and 2009, neither party applied to the Singapore High Court to set aside the Judgment. It was only after Panin’s application to appeal against the Malaysia Court of Appeal’s decision to set aside the registration of the Judgment was dismissed that Panin applied, on 24 May 2010, via Summons No 600063 of 2010 filed in the Singapore High Court, to set aside the Judgment and enter a fresh judgment against Ngan.

Ngan did not attend the hearing of Summons No 600063 of 2010 on 7 June 2010 where AR Then Ling set aside the Judgment and granted Panin leave to enter a fresh default judgment against Ngan. On 21 July 2010, Ngan applied, via Summons No 600081 of 2010, for Summons No 600063 of 2010 to be re-heard and for the orders made in Summons No 600063 of 2010 to be set aside. At the hearing of Summons No 600081 of 2010 on 6 August 2010, AR Jordan Tan agreed with counsel for Ngan that there had not been full disclosure of the circumstances of the case to AR Then Ling. For this reason and the fact that AR Then Ling’s orders had been granted in Ngan’s absence, AR Jordan Tan exercised his power under O 32 r 5(3) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“Singapore ROC”) and re-heard Summons No 600063 of 2010. AR Jordan Tan set aside the orders made by AR Then Ling. He then proceeded to set aside the Judgment and dismissed Panin’s application to enter a fresh default judgment against Ngan. He also ordered that Ngan be given an extension of time until 5 October 2010 to file a Memorandum of Appearance and that upon the filing of a Notice of Appeal against his decision by Ngan, the filing of a Defence would be stayed with the timelines for filing the Defence to be decided by the Judge hearing the appeal.

Decision

Ngan did not question the court’s jurisdiction to set aside a default judgment even when the application to do so was made by a plaintiff. The court has an unfettered discretion (pursuant to O 13 r 8 of the Singapore ROC) to set aside the Judgment on such terms as it thinks fit. This discretion is very wide and the concern of the court is the justice of the case (see, eg, Mercurine Pte Ltd v Canberra Development Pte Ltd [2008] 4 SLR(R) 907 (“Mercurine”) at [35], [72], [76] and [99]; MacQuarie Bank Ltd v Beaconsfield and Others [1992] 2 VR 461 at 466; Cannan v Reynolds 119 ER 493 at [305] – [306]).

The underlying reason for Panin’s application to set aside the Judgment appeared to be to allow Panin to obtain a judgment that would be enforceable in Malaysia. In my opinion, subject to considerations of prejudice to the defendant, there is good reason for setting aside a default judgment where the default judgment is not capable of being enforced in the foreign jurisdiction in which the defendant’s assets are located such that the plaintiff’s claim would effectively be lost. In this regard, I would adopt the reasoning of the English High...