Projector SA v Marubeni International Petroleum (S) Pte Ltd (No 2)

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 03 December 2004
• Neutral Citation: [2004] SGCA 58
• Docket Number: Civil Appeal No 42 of 2004
• Date: 03 December 2004
• Published date: 13 December 2004
• Year: 2004
• Plaintiff Counsel: Lok Vi Ming, Govind Asokan, Lawrence Teh and Sean La'Brooy (Rodyk and Davidson)
• Citation: [2004] SGCA 58
• Defendant Counsel: Ian Koh and Werner Tsu (Drew and Napier LLC)
• Court: Court of Appeal (Singapore)
• Subject Matter: Appeals,Civil Procedure,Applicant seeking leave to amend notice of appeal displaying lack of candour as to reason for seeking amendment,Respondent challenging application on grounds that amendment prejudicial,Notice,Whether leave to amend notice of appeal should be granted

3 December 2004

Judith Prakash J:

Background

1 This matter came before us by way of a motion, pursuant to s 36(3) of the Supreme Court of Judicature Act (Cap 32, 1999 Rev Ed) (“the Act”), seeking to set aside or discharge an order made by Woo Bih Li J in respect of an application made by Projector SA (“Projector”) for leave to amend its notice of appeal: see Projector SA v Marubeni International Petroleum (S) Pte Ltd [2004] 4 SLR 241.

2 Projector is the appellant in the main appeal and the defendant in the original action commenced by Marubeni International Petroleum (S) Pte Ltd (“Marubeni”). In late November 2003, Marubeni started the action to enforce its rights under two letters of indemnity. Shortly thereafter, it obtained a mandatory injunction order against Projector whereby Projector was ordered to pay a cash deposit of approximately US$2.6m into court in South Korea to secure the release of the vessel Dynamic Express from arrest in Korea. Projector made the necessary payment on 5 December 2003.

3 In the meantime, on 2 December 2003, Projector applied to discharge the injunction. The matter was heard before Belinda Ang Saw Ean J on 19 May 2004: see Marubeni International Petroleum (S) Pte Ltd v Projector SA [2004] 4 SLR 233. The judge ordered that:

(a) the injunction be discharged on the condition that the cash deposits in the South Korean court be retained to abide the outcome of the proceedings in Korea;

(b) Projector’s prayers in relation to damages and costs be reserved to the trial judge; and

(c) each party be given a general liberty to apply in connection with the orders made.

4 Projector was dissatisfied with the above orders and filed a notice of appeal on 18 June 2004. The notice stated that the appeal was against such part only of the decision as reserved the questions of an inquiry into damages and costs to the trial judge. On 6 July 2004, however, Projector filed an application before the Court of Appeal for liberty to amend its notice of appeal to include an appeal against that part of Ang J’s orders which imposed the condition that the cash deposit be retained in the South Korean court pending the outcome of those proceedings. This was the application that was placed before Woo J for hearing pursuant to s 36(1) of the Act.

5 Woo J dismissed the application with costs. He noted that the decision of this court in Leong Mei Chuan v Chan Teck Hock David [2001] 2 SLR 17 meant that the stringent requirements for an application for an extension of time to file an appeal would not apply to an application to amend a notice of appeal. He did not agree, however, that that decision also meant that so long as a respondent could be compensated by costs an application to amend should be allowed. If that were so, it would be applying a rigid mechanistic approach to such an application. His interpretation of the Leong Mei Chuan decision was that the fact that a respondent could be compensated by costs was one factor leaning in favour of allowing the amendment, but that all relevant facts leading to the application should still be considered in coming to a decision whether to allow it or not.

6 Woo J then pointed out that in the two affidavits of Mr Govind Asokan, a partner in the local firm of solicitors representing Projector, there was a contradiction in the explanation given as to why the appeal against the condition was initially not included in the Notice of Appeal. He found that in the first affidavit the reason given was that there was “miscommunication within [the] firm”, but in the second affidavit, the reason was that there was a “miscommunication in the taking of instructions from clients who [were] overseas”. It turned out that Projector’s solicitors were taking instructions from English solicitors in Singapore so the statement in the second affidavit was inaccurate. The judge found that there was, in reality, no miscommunication. It seemed to him that a deliberate decision had been taken with the benefit of advice from solicitors with regard to the contents of the notice of appeal. In view of these circumstances and the lack of candour in the supporting affidavits, Woo J dismissed the application.

7 We allowed Projector’s application and set aside the order made on 16 July 2004 by Woo J. We then granted Projector leave to amend its notice of appeal by adding an appeal against the condition imposed in relation to the cash deposits. We now give our reasons for this decision.

The applicable principles

8 The only local case that deals with the issue of amendment of a notice of appeal is the Leong Mei Chuan decision. This court held (per L P Thean JA at [15]) that the...