Roberto Building Material Pte Ltd and Others v Oversea-Chinese Banking Corporation Ltd and Another

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 16 May 2003
• Neutral Citation: [2003] SGCA 21
• Citation: [2003] SGCA 21
• Date: 16 May 2003
• Published date: 17 December 2003
• Plaintiff Counsel: Kenneth Tan SC and Wang Wei Chi (Kenneth Tan Partnership)
• Docket Number: Civil Appeal No 100 of 2002
• Defendant Counsel: Michael Hwang SC, Edwin Tong, Loong Tse Chuan (Allen & Gledhill),V K Rajah SC, Lee Eng Beng, Chio Yuen-Lyn, Lynette Koh (Rajah & Tann)
• Court: Court of Appeal (Singapore)
• Year: 2003

Delivered by Chao Hick Tin JA

1 This was an application made by way of motion asking the Court of Appeal to review a decision made by a single Judge pursuant to the powers conferred upon him under s 36(1) of the Supreme Court of Judicature Act (SCJA). We heard the motion on 30 April 2003 and allowed it. We now give our reasons as the issue involved relates to an aspect of civil procedure of some practical importance.

Background

2 The applicants in the motion are the four appellants in Civil Appeal No. 100/2002. The first appellant (Roberto) is a Singapore incorporated company engaged in the business of supplying building materials to the construction industry. The second, third and fourth appellants are the directors of Roberto.

3 There are two respondents in the civil appeal. The first is a bank, the Oversea-Chinese Banking Corporation Ltd (OCBC), and the second, Mr Don Ho Mun-Tuke, a public accountant, who was appointed receiver and manager of Roberto pursuant to rights conferred upon OCBC under a deed of debenture entered into between Roberto and OCBC. The second to fourth appellants stood as guarantors in relation to the credit facilities granted by OCBC to Roberto.

4 The appointment of Mr Don Ho as receiver and manager was made by OCBC on 22 April 2000. At that point in time, Roberto owed OCBC a sum of about $32.9 million. After his appointment as receiver and manager, attempts were made by him to sell a certain real property belonging to Roberto. Some attempts were also made to rent out the property on short term leases. But, up to the time of the institution of the action by Roberto and the guarantors against OCBC and Mr Don Ho for alleged breaches of their duties, the property had not yet been sold. Except for a brief period, 13 November 2000 to 12 February 2001, when the 6^th floor was rented out, no rental income from the building was obtained.

5 The trial of the action stretched over some nine days in August/September 2002. At its conclusion Roberto’s and the guarantors’ claims against OCBC and Mr Don Ho were dismissed with costs. On 26 September 2002 the appellants filed their Notice of Appeal, having furnished the standard sum as security for costs. The trial judge rendered his Grounds of Decision on 9 December 2002. The appellants filed their Case in the appeal on 10 February 2003. The respondents filed their Cases on 10 March 2003. In the meantime, OCBC’s costs for the trial were taxed. Despite request, the taxed costs were not paid.

6 In March 2003, by way of two motions (Nos. 18/2003 and 25/2003) the respondents asked for the appeal to be stayed until the taxed costs of the first respondent in relation to the action below have been paid and also for further security for costs of the appeal. The applications came before Choo Han Teck J who, pursuant to s 36(1) of the SCJA, ordered the appellants to furnish to OCBC, by 17 April 2003, further security for costs of the appeal in the sum of $40,000 by way of a banker’s guarantee. He also ordered that the unpaid taxed costs of the trial below due to OCBC in the sum of $287,849, plus disbursements, be paid by the same date, failing which the appeal against both the respondents would be stayed and OCBC would be entitled to make a further application to dismiss the appeal. In respect of the second respondent, Mr Don Ho, the judge ordered that the appellants furnish him $10,000 as additional security. The additional security for both respondents was duly provided by the appellants. However, the taxed costs of OCBC remained unpaid.

Jurisdiction under s 36(1)

7 By way of the present motion, the appellants sought to have part of the order, i.e., that the appeal be stayed unless they paid up the taxed costs of OCBC at first instance by 17 April 2003, discharged or varied. The appellants made a two-pronged submission. First, they argued that the single Judge, exercising jurisdiction under s 36(1), had no power to make the order in question. Second, even if the single Judge had such a power, he should not have exercised it in the circumstances of this case.

8 Section 36(1) reads:

In any proceedings pending before the Court of Appeal, any direction incidental thereto not involving the decision of the appeal, any interim order to prevent prejudice to the claims of parties pending the appeal, and any order for security for costs and for the dismissal of an appeal for default in furnishing security so ordered, may at any time be made by a Judge.

9 Quite clearly, under this provision there are three limbs indicating the three broad categories of orders that may be made by a single Judge.

(i) any incidental direction not involving the decision of the appeal;

(ii) any interim order to prevent prejudice; and

(iii) any order for security for costs of the appeal and the consequential order for dismissal of appeal for default.

10 It is quite clear that the order under challenge does not fall under the third limb; nor under the second. The question is whether it falls under the first limb. On the face of it, when a judge orders that the costs below be paid, otherwise there will be a stay of the appeal, he is not making an order involving the decision of the appeal. It is, however, no less a procedural order. By qualifying the expression “direction incidental thereto” with the phrase “not involving the decision of the appeal” the legislature must have intended that any direction, so long as it does not involve the disposal of the appeal may be made by the single Judge.

11 On the other hand, the appellants submitted that as the order could lead to the appeal being struck out and not just stayed if there was non-compliance, it is outside the scope of the first limb. In this regard, they relied upon the decision of this Court in Tan Chiang...