Riduan bin Yusof v Khng Thian Huat and Another

JudgeChao Hick Tin JA
Judgment Date07 February 2005
Neutral Citation[2005] SGCA 8
Docket NumberCivil Appeal No 72 of 2004
Date07 February 2005
Published date15 February 2005
Plaintiff CounselAppellant in person
Citation[2005] SGCA 8
Defendant CounselHri Kumar and Wilson Wong (Drew and Napier LLC)
CourtCourt of Appeal (Singapore)
Subject MatterCivil Procedure,Clause stating no appeal from decision of court-appointed expert,Whether notice of appeal irregular,Whether appeal on costs should be automatically struck out,Notice of appeal,Order 57 r 3 Rules of Court (Cap 322, R 5, 2004 Rev Ed),Whether decision of judge separate from decision of court expert,Notice of Appeal,Striking out,Whether appellant prevented from appealing,Leave,Whether notice of appeal frivolous, vexatious or abuse of process,Whether clear and obvious case for striking out,Appeal on damages struck out due to appellant's failure to obtain leave to appeal,Appeals

7 February 2005

Lai Siu Chiu J (delivering the judgment of the court):

1 Khng Thian Huat and Choy Mei Har (“the respondents”) applied by Notice of Motion No 98 of 2004 (“the application”) to strike out the Notice of Appeal (“the Notice of Appeal”) filed by Riduan bin Yusof (“the appellant”) in Civil Appeal No 72 of 2004. We refused the appellant’s request for an adjournment (in order to engage counsel), proceeded to hear the application and dismissed it with no order on costs. We now give our reasons.

The facts

2 The appeal arose out of a dispute over a tenancy agreement between the parties. The respondents were the owners of a property at 95 Telok Kurau Road, Singapore 279022 (“the property”), which was tenanted by the appellant for three successive periods:

(a) The first tenancy ran from January 1995 to March 1997;

(b) The second tenancy ran from April 1997 to March 2000; and

(c) The third tenancy ran from April 2000 to March 2003.

3 For various reasons, the formal lease for the third tenancy was never signed. Nevertheless, the parties did sign a letter of intent which contained the material terms of the third tenancy. Soon after the letter of intent was signed, the parties’ relationship deteriorated rapidly. The appellant was habitually late in making rental payments. Subsequently, the respondents attempted to assert, through correspondence, that the property was occupied by the appellant on a periodic basis, thereby denying the validity and existence of the third tenancy.

4 The respondents’ solicitors then served on the appellant a notice of “termination”. The appellant rejected this unilateral termination of occupancy rights and refused to vacate the premises. Further, he denied the respondents any access when they sought to inspect the property.

5 The respondents then proceeded with a claim against the appellant in the District Court for payment of double rent pursuant to s 28(4) of the Civil Law Act (Cap 43, 1999 Rev Ed) for wrongfully holding over the property from 1 May 2001 to 10 April 2003. Subsequently, the respondents’ claim for double rent increased with the passage of time. After the respondents’ application for summary judgment failed, the proceedings were transferred by consent to the High Court as Suit No 929 of 2003: see Khng Thian Huat v Riduan bin Yusof [2005] 1 SLR 130.

The trial in the High Court

6 In the High Court, the respondents claimed against the appellant:

(a) double rent for holding over the property after the expiry of the second tenancy;

(b) damages for failing to restore the property to its original condition when the property was eventually vacated on 19 April 2003; and

(c) damages for consequential loss of usage arising from the property’s state of disrepair; and

7 At the trial, the respondents claimed compensation for the damage caused by the appellant’s failure to hand over the property in the same condition as it was at the commencement of the third tenancy. It was not in dispute that the appellant had caused some damage to the property. However, the parties could not agree on the degree of damage, the apportionment of fair wear and tear and the quantum of the claim.

8 In this regard, both parties engaged experts to assess the quantum of damages. However, the disparity between the evidence of their respective experts was quite substantial. At the court’s suggestion, both parties then agreed to abide by the decision of a court-appointed expert (“the “court expert”) on the issue of identifying and quantifying the alleged damage to the property.

9 Notably, the agreed terms of reference negotiated by the parties in relation to the court expert included the following provision:

6. The Expert’s decision [on the quantum of damages] shall be final and binding on both parties, and no appeal or revision shall be brought in respect of the Expert’s decision.

10 The court expert carried out three site inspections, and met with the parties’ experts. The court expert then concluded that the appellant was responsible for damage to the property in the sum of $110,575.00, in addition to the sum of $15,595.00, which the parties’ experts had earlier jointly accepted as the sum due from the appellant. The court expert also stated that it would have taken seven weeks to repair the damage and reinstate the property. The learned trial judge accepted the court expert’s views and findings.

11 At the conclusion of the trial, the judge allowed the respondents’ claim in part but dismissed their main claim on the issue of double rent. The appellant was held liable for damages in the sum of $79,170.00 arrived at as follows:

(a) compensation in the sum of $110,575.00 as assessed by the court expert, plus the sum of $15,595.00 agreed by the parties’ experts as being due to the respondents;

(b) loss of use of the property for seven weeks assessed on the basis of the applicable rental amounting to a total of $40,250.00; and

(c) reimbursement of the sum of $2,750.00 being the portion of the court expert’s fees paid earlier by the respondents;

less credit for the sum of $90,000.00 which had been held by the respondents as a security deposit for the third tenancy.

12 Notably, at the conclusion of the trial, both parties were ordered to bear their own costs incurred in the proceedings.

The Notice of Appeal

13 The appellant filed the Notice of Appeal on 19 August 2004 in person, having discharged his previous solicitors on 11 August 2004. The Notice of Appeal raised two issues for appeal: (a) damages and (b) costs.

14 On the issue of damages, the appellant asserted that:

(a) The respondents had undertaken demolition works and had removed various items in the property before the court expert could inspect the property. The appellant therefore contended that the respondents had intentionally removed evidence relevant to the subject matter of the dispute, thereby adversely affecting the findings reached by the court expert.

(b) The respondents themselves had failed to carry out maintenance works pursuant to their obligations as set out in the rental receipt they issued. The appellant also asserted that the respondents had intentionally altered the terms contained in the rental receipt by subsequently issuing the appellant with a new rental receipt without informing the appellant of the changes made. The appellant therefore argued that the order for damages should have taken into account the respondents’ own failure to carry out maintenance works pursuant to the terms set out in the rental receipts.

15 On the issue of costs, the appellant contended that:

(a) The respondents had themselves wasted the court’s time by adopting certain arguments in the original version of their Defence, which they knew to be unmeritorious and which they eventually retracted by way of subsequent amendments to the Defence. The appellant contended that the order on costs failed to take into account the respondents’ role in wasting the court’s time in this manner.

(b) The respondents should have engaged counsel to explain the terms of the tenancy agreement to the appellant. In particular, the respondents had failed to clarify their requirement in the first tenancy agreement for the property to be returned in its “original condition”. The appellant contended that the order on costs should have also considered the conduct and omission by the respondents in this regard.

(c) The respondents had deliberately coaxed the appellant to enter into the third tenancy by claiming that unless he entered into the third tenancy, the appellant would have to bear a great deal of costs in order to reinstate the property to its original condition. The appellant therefore contended that the order on costs should have also taken into account the conduct of the respondents in this regard.

The application

16 The respondents raised the following grounds in support of the application to strike out the Notice of Appeal:

(a) the Notice was irregular;

(b) the Notice was frivolous, vexatious and/or an abuse of process.

Principles applicable to striking out notices of appeal

17 The principles applicable to striking out notices of appeal are stated in Singapore Civil Procedure 2003 (Sweet & Maxwell Asia, 2003) (“the White Book”) at para 57/3/7:

The Court of Appeal has the inherent jurisdiction to strike out a notice of appeal where an appeal is plainly not competent (see Aviagents Ltd v. Balstravest Investments Ltd [1966] 1 W.L.R. 150; [1966] 1 All E.R. 450; or where the appeal is frivolous, vexatious or an abuse of the process of the court (see Burgess v. Stafford Hotel Ltd [1990] 1 W.L.R. 1215; [1990] 3 All E.R. 222). An appeal can be struck out in the exercise of that jurisdiction, if there is no possibility that the grounds of appeal are capable of argument.

18 While as a general principle it is possible to strike out a notice of appeal in certain circumstances, the present application should be distinguished from the more conventional situation where notices of appeal are usually struck out because they are filed out of time. As the White Book notes at para 57/3/7:

Cases involving striking out of notices of appeal are usually linked to O. 57, r. 4 (time for appealing). … See Jeyaretnam Joshua Benjamin v. Lee Kuan Yew [1991] S.L.R. 118 and Ooi Phee Cheng v. Kok Yoon San [1951] 1 M.L.J. 135. [emphasis added]

19 This is not the case here. Following the judgment of 19 July 2004, there was a one-month time limit for the appellant to file his Notice of Appeal, under O 57 r 4(c) of the Rules of Court (Cap 322, R 5, 2004 Rev Ed) (“the Rules”). He did file the Notice of Appeal on 19 August 2004 and deposited the sum of $10,000 as security for the costs of the appeal. Therefore, the Notice of Appeal was not filed out of time. On 27 August 2004, the trial judge indicated that he did not wish to hear further arguments from the appellant on the issue of damages.

20 The burden to show that the Notice of Appeal should be struck out therefore lay on the...

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