Rank Xerox (Singapore) Pte Ltd v Ultra Marketing Pte Ltd

• Jurisdiction: Singapore
• Judge: Warren Khoo L H J
• Judgment Date: 05 December 1991
• Neutral Citation: [1991] SGCA 45
• Date: 05 December 1991
• Subject Matter: Appeals,s 34(2) Supreme Court of Judicature Act (Cap 322),Conditional leave to defend,Leave,Effect of failure to obtain leave,Whether leave to appeal required,Appellate court's exercise of discretion to grant leave,Whether final or interlocutory order,Whether order final or interlocutory,Civil Procedure
• Docket Number: Civil Appeal No 38 of 1988
• Published date: 19 September 2003
• Defendant Counsel: Yeo Piah Chuan (Piah Tan & Partners)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Yeo Hock Cheong and Yap Tuck Kong (Hock Cheong & Co)

Cur Adv Vult

The plaintiffs claimed against the defendants $1,706.17 for service and maintenance charges due under three agreements. Upon the plaintiffs` application for summary judgment, the district judge granted the defendants unconditional leave to defend. On 31 March 1988 Chan Sek Keong JC, as he then was, varied this by giving the defendants leave to defend conditional upon his payment of $1,706.17 into court. The plaintiffs sought to have this order set aside.

At the hearing before the Court of Appeal the defendants made a preliminary objection on the ground that leave to appeal had not been obtained as required under (i) s 34(1)(a) of the Supreme Court of Judicature Act, since the value of the subject matter `at trial` was less than $2,000; or (ii) s 34(2) of the same Act, since the order of conditional leave to defend was an interlocutory order. The plaintiffs contended that s 34(1)(a) was inapplicable because, these being summary judgment proceedings, no `trial` was involved. In the event, we did not find it necessary to decide this point. We decided that an order for conditional leave to defend is an interlocutory order within the meaning of that subsection, and that leave is required.

We found the present English case law unhelpful in relation to the argument on s 34(2) because in England and Wales there has been since 1925 an express statutory provision to the effect that an order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory order. This was construed in Gordon v Cradock 1 to extend to an order giving conditional leave to defend. Our statutes and Rules of Court do not contain any equivalent provision, nor is it proper to read into s 34(2) of our Supreme Court of Judicature Act (Cap 322) a meaning assigned by a special provision of a statute from another jurisdiction. We think this a desirable opportunity to state clearly what the position in this jurisdiction is.

Previously, there were two possible tests to be applied in deciding whether an order was interlocutory or final. The first was stated by Fry LJ in Salaman v Warner 2 at p 736:

... an order is `final` only where it is made upon an application or other proceeding which must, whether such application or proceeding fail or succeed, determine the action. Conversely, ... an order is `interlocutory` where it cannot be affirmed that in either event the action will be determined.

The second was the test stated by Lord Alverstone in ...