Rohde & Liesenfeld Pte Ltd v Jorg Geselle and Others

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 07 September 1998
• Neutral Citation: [1998] SGCA 54
• Docket Number: Civil Appeal No 29 of 1998
• Date: 07 September 1998
• Year: 1998
• Published date: 19 September 2003
• Plaintiff Counsel: Quentin Loh and Ian Ng (Cooma, Lau & Loh)
• Citation: [1998] SGCA 54
• Defendant Counsel: R Chandran (R Chandran & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether application for withdrawal to be dismissed if condition imposed not acceptable,With leave,Appellants appeal against imposition of condition or alternatively for dismissal of application,Civil Procedure,Leave granted with imposition of condition,Whether imposition of condition justifiable,Appellants applying for leave to withdraw certain claims in statement of claim,O 21 r 3(1) Rules of Court 1996,Discontinuance

Judgment:

LP THEAN JA

(delivering the grounds of judgment of the court): This was an appeal against the decision of a judge in chambers in which he dismissed the appeal brought against the order made by the assistant registrar allowing certain part of the appellants` claim to be withdrawn but subject to the condition that they, the appellants, were not to institute fresh proceedings on the claims so withdrawn. We dismissed the appeal and now give our reasons.

2. The facts

The appellants are a company incorporated in Singapore and carry on the business of freight forwarders and packers. At all material times, the first respondent and the second respondent were in the employ of the appellants as their managing director and manager respectively. The third respondents are a company which was set up by the first and second respondents, and also carry on the business of freight forwarders. In the proceedings below, the appellants claimed against the first and second respondents, inter alia, damages for breach of contract and/or breach of duties of fidelity and claimed against the third respondents damages for inducing a breach of contract by the first and second respondents. There was also another party, who was joined as the fourth defendant, namely, Ee Gat Choo, who at one time was also in the employ of the appellants. But in this appeal she was not joined as a party.

3.The action was commenced on 18 June 1996. On the same day, the appellants applied for and obtained an Anton Piller order. Execution of the order was carried out at the premises of the third respondents on the following day, pursuant to which a considerable number of documents were taken into the appellants` possession.

4.On 12 November 1996, the appellants applied for leave to amend the writ of summons and statement of claim. The grounds of the application were that the documents obtained pursuant to the Anton Piller order provided evidence in support of further allegations against the respondents, including allegations of improper use and/or unauthorised use of the appellants` funds by the first and second respondents while in the employ of the appellants. On 5 March 1997, the appellants were granted leave to amend the writ of summons and statement of claim. Among the amendments allowed was para 26(a) of the statement of claim which (as amended) read as follows:

26 Further or in the alternative, the first defendant, is in breach of his contractual and/or fiduciary duties to the plaintiffs, and/or the second and/or fourth defendants, in breach of their contractual duties and/or duties of fidelity did incur improper and/or unauthorised expenses on the plaintiffs` account.

Particulars

(a) Improper payments made ostensibly to service providers for services not in fact provided and/or excessive payments made to the same, as follows:

(i) Chiang Ben Hin Transport Service $24,650

(ii) Goyu Trading and Engineering Pte Ltd $118,073

(iii) Uniwarehouse Services $200,540

5.Following the order made on a summons for directions, dates were set for discovery of documents and other matters leading up to trial. By an order made on 11 November 1997 the case was fixed for trial commencing from 5 to 13 February 1998 and parties were ordered to serve their lists of documents by 2 December 1997, and to serve their affidavits of evidence-in-chief by 6 January 1998.

6.On 24 December 1997, the appellants took out an application for further directions praying, inter alia, for an order that the appellants be given leave to withdraw their claims in paras 26(a), (b), (c), (e), (h) and 27 of the amended statement of claim. The appellants gave the reason that as a result of certain documents disclosed in the discovery they were contemplating taking proceedings against some other parties and joining them as defendants. The application was heard before the assistant registrar on 5 January 1998 and, among other things, she granted leave to the appellants to withdraw those parts of the claim applied for but she imposed the condition that the appellants were not to institute fresh proceedings on those claims withdrawn. The appellants appealed to a judge in chambers to rescind that condition.

7.The appeal was heard on 20 January 1998 and in the course of argument counsel for the appellants submitted that if the learned judge was not inclined to rescind the condition, the application for withdrawal should be dismissed, with the result that the action would then proceed to trial. The learned judge dismissed the appeal on the ground that to revoke the condition would be prejudicial to the respondents. He also rejected the appellants` request that the application for withdrawal of the claim in question should be dismissed.

8.Since the decision of the learned judge, the parties had arrived at a settlement on 4 February 1998, which was the eve of the first day of the trial, and consent judgment was entered against the respondents the next day. The settlement was expressly made without prejudice to the withdrawn claims, which were then the subject of this appeal.

9. The appeal

Before us, the appellants were concerned with only the withdrawal of the claim in para 26(a) of the statement of claim. Two issues were raised: (i) whether leave should have been given to the appellants to withdraw para 26(a) of their statement of claim without the condition imposed; and (ii) if the question was answered in the negative, whether the learned judge should have dismissed the application for withdrawal, as the appellants were not prepared to accept the condition.

10.It is convenient here to set out the relevant provision of O 21 r 3(1) Rules of Court 1996 which is as follows:

Except as provided by Rule 2, a party may not discontinue an action (whether begun by writ or otherwise) or counterclaim, or withdraw any particular claim made by him therein, without the leave of the Court, and the Court hearing an application for the grant of such leave may order the action or counterclaim to be discontinued, or any particular claim made therein to be struck out, as against all or any of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.

11.This provision confers on the court a wide discretion to order that the action or claim be discontinued on such terms as it thinks just. A discontinuance or withdrawal of a claim by the plaintiff does not prevent him from bringing another action for the same claim, unless a condition to that effect is imposed. The essence for the discontinuance or withdrawal is that as the claim has not been determined, and the plaintiff is free to bring a fresh action to pursue it.

12.In Chappie Ltd v Warrington Canners Ltd [1955] 72 RPC 343, the plaintiffs instituted an action against the defendants claiming infringement of their trade mark `Kit-E-Kat` by the defendant`s unregistered mark `Pretty Kitty` and passing off. The defendant resisted the claim and also made a counterclaim against the plaintiffs. The plaintiffs delivered a reply and a defence to the counterclaim. Thereafter, without taking any further step, the plaintiffs applied for leave to discontinue the action. At the hearing of the application, the plaintiffs were prepared to give an undertaking that in any future action they would not rely on the infringement or passing off that took place before the issue of the writ, but submitted that no other condition should be imposed. Wynn-Parry J allowed the discontinuance of the action on the basis of that undertaking only. He said at p 344:

It is quite clear from the authorities that I ought

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