Ravindran Associates LLP v Sun Electric Pte Ltd

• Jurisdiction: Singapore
• Judge: Teo Wei Ling
• Judgment Date: 26 March 2021
• Neutral Citation: [2021] SGMC 17
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrates Court Suit No 9071 of 2020, Summons No 5676 of 2020
• Published date: 06 April 2021
• Year: 2021
• Hearing Date: 05 March 2021
• Plaintiff Counsel: Alvin Tan Jing Han (Ravindran Associates LLP)
• Defendant Counsel: Lim Chee San (TanLim Partnership)
• Subject Matter: Civil Procedure,Setting aside of default judgment,Legal Profession,Bill for professional fees
• Citation: [2021] SGMC 17

Deputy Registrar Teo Wei Ling: Introduction

The present action was commenced by the plaintiff, Ravindran Associates LLP (“RAL”) against the defendant, Sun Electric Pte Ltd (“SEPL”), for the recovery of legal costs amounting to a sum of $53,148.08. SEPL failed to enter an appearance and RAL obtained a judgment in default of appearance on 10 September 2020 (“Default Judgment”).

On 20 November 2020, SEPL filed the present application to set aside the Default Judgment (“Application”). Having considered the evidence and arguments, I am not satisfied that the matters raised by SEPL are sufficient to set aside the Default Judgment and I dismiss the Application. My reasons follow.

Background

RAL represented SEPL in two patent infringement suits in the High Court, viz, Suit No. 1229 of 2016 and Suit No. 190 of 2018 (“the High Court Suits”). Between November 2019 and February 2020, RAL issued eight invoices (“the Invoices”) to SEPL, for professional fees for work done in the High Court Suits, including defending SEPL against two security for costs applications (“the SFC Applications”).

According to the affidavit filed on behalf of RAL dated 14 January 2021, RAL sent repeated reminders to SEPL to make payment of the Invoices but SEPL failed to make any payment. RAL eventually applied to discharge itself from continuing to act for SEPL in the High Court Suits.

After its discharge, RAL sent a letter of claim to SEPL on 1 July 2020 to demand payment of the Invoices. As no payment was made, RAL commenced the present action on 20 August 2020 to recover the amount of $53,148.08, being the total sum of the Invoices. On 31 August 2020, RAL served the writ on SEPL by leaving it at SEPL’s registered office.

No appearance was entered by SEPL, and on 10 September 2020, RAL obtained judgment in default of appearance for the sum of $53,148.08 (i.e. the Default Judgment). RAL sent a letter to SEPL’s registered address, which SEPL received on or about 25 September 2020, demanding payment pursuant to the Default Judgment. The next day, on 26 September 2020, SEPL filed a Notice of Appointment of solicitors. SEPL subsequently filed this Application to set aside the Default Judgment some 2 months later.

SEPL’s contentions

In the affidavits filed by SEPL’s director, Mr Matthew Peloso (“Mr Peloso”), SEPL contended that the Default Judgment should be set aside because there are 5 triable issues, which I outline here: First, RAL had charged for work done before its appointment. Second, the Invoices were excessive. Third, before SEPL signed the warrant to act appointing RAL, SEPL was given to understand by RAL that the costs of defending the SFC Applications would not exceed $15,000. Fourth, SEPL wants RAL’s Invoices to be taxed. SEPL also asserted that RAL did not previously inform it of its right to apply for taxation. Finally, SEPL has a counterclaim for sums paid to RAL in excess of an alleged fee cap agreement, and for costs that SEPL will have to incur to engage new lawyers for the High Court Suits.

Relevant legal principles

The law relating to the setting aside of default judgments was clarified in the seminal decision of the Court of Appeal in Mercurine Pte Ltd v Canberra Development Pte Ltd [2008] 4 SLR(R) 907 (“Mercurine”). In assessing whether a regular default judgment should be set aside, the appropriate test is whether a defendant can establish a prima facie defence in the sense of showing that there were triable or arguable issues (Mercurine at [60], citing Evans v Bartlam [1937] AC 473). A triable issue exists where there are “merits to [the defence] which the Court should pay heed” (Evans v Bartlam at 489).

The test is not stricter than that for obtaining leave to defend in a summary judgment application under Order 14 of the Rules of Court, even though the two applications are not perfect mirror images of each other (Mercurine at [60]). In the context of an Order 14 application, a triable issue has been described by the High Court in Wayne Burt Commodities Pte Ltd v Singapore DSS Pte Ltd [2017] SGHC 70 (at [7]) as “not one which is either (a) inconsistent with undisputed contemporary documents, or (b) inherently improbable in itself”.

However, this does not mean that any assertion in an affidavit will suffice to raise a triable issue. The defendant bears the burden of providing sufficient, although not necessarily conclusive evidence to anchor his putative defence, in order to persuade the court that the setting aside application is not merely one to delay or deny the execution of the judgment already obtained (Hayate Investment Co Ltd v ManagementPlus (Singapore) Pte Ltd [2012] SGHCR 3 (“Hayate”) at [8]).

At the end of the day, a setting aside application involves a balancing exercise in which the question of whether there is a defence on the merits is the dominant feature to be weighed...