Samsung Corp v Chinese Chamber Realty Pte Ltd and Others

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 29 December 2003
• Neutral Citation: [2003] SGCA 50
• Date: 29 December 2003
• Subject Matter: Whether application could be made pending application for stay of proceedings,Whether court could invoke inherent powers to vary O 14 r 1,Order 92 r 4 Rules of Court (Cap 322, R 5, 1997 Rev Ed),Summary judgment,Application for summary judgment under new O 14 r 1,Order 14 r 1 Rules of Court (Cap 322, R 5, 1997 Rev Ed),Defence not filed,Civil Procedure,Inherent powers
• Docket Number: Civil Appeal No 81 of 2003
• Published date: 10 January 2004
• Defendant Counsel: Latiff Ibrahim, Yeo Khung Chye (Harry Elias Partnership)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: C R Rajah SC (instructed), Koh Kok Wah, Gerald Ng and Daniel Chia (Wong and Leow LLC)

Chao Hick Tin JA

1 This appeal raises the question as to whether it is proper, in the light of the current O 14 r 1, for the court to compel a defendant to file his defence to an action, with the aim of enabling the plaintiff to file an O 14 application for summary judgment, when the defendant has already filed an application for a stay of the proceeding.

2 The present O 14 r 1 reads:-

“Where a statement of claim has been served on a defendant and that defendant has served a defence to the statement of claim, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.”

3 The words which we have italicized above, namely, “served a defence to the statement of claim” have replaced the previous words “entered an appearance in the action.”. Under the previous rule, even though the defendant had already applied for a stay of the proceeding, there was nothing to stop a plaintiff from applying for summary judgment. This was because it was then not a requirement that the defence must be filed before the O 14 application could be made. It was also then the practice, in the interest of avoiding delay, that both the stay and the O 14 applications would be heard at the same time. While the tests that would be applied in determining the two applications were not the same, there would usually be considerable overlap in the arguments presented. Thus, in a sense, there was some expedience in this approach. An example where such an approach was taken is the case of Aoki Corp v Lippoland (S) Pte Ltd [1995] 2 SLR 609.

4 In Yeoh Poh San & anor v Won Siok Wan [2002] 4 SLR 91, a case decided under the previous rule, the court took the opportunity to consider whether it was conceptually correct to require a defendant to file his defence while his stay application was pending final resolution. There, an application by the defendant for a stay of proceeding on the grounds of forum non conveniens and multiplicity of suits was dismissed by the Assistant Registrar. The defendant appealed against the dismissal. The time prescribed by the Rules of Court for the filing of defence expired before the appeal was heard. No defence was filed. The plaintiff applied for summary judgment in default of defence. In turn, the defendant applied for an extension of time until after the hearing of the appeal to file his defence. The Deputy Registrar granted the defendant an extension of 14 days to enable her to file her defence with the caveat that the filing of the defence would not be considered to have been a step taken by the defendant in the proceeding. The defendant took the matter to the judge-in-chambers, arguing that she should be given an extension until the stay application had been finally determined before being required to file her defence.

5 Relying on the principles enunciated by this Court in The Jarguh Sawit [1998] 1 SLR 648, Woo Bih Li JC (as he then was) was of the view that as the plaintiff was aware that the defendant had filed an appeal against the order refusing a stay, he should not have, pending the hearing of the appeal, insisted on the filing of the defence. The judge felt that the reason why a plaintiff should not insist on the filing of defence before the original stay application was heard was equally applicable to an appeal, as to require the filing of defence would defeat the purpose of the stay application. He did not favour what was essentially a “compromise” approach adopted by the Deputy Registrar of, on the one hand, making the defendant file his defence before the appeal on the stay application had been finally disposed of and, on the other hand, stating that in order not to prejudice the defendant’s position, that the filing of the defence should not be considered to be a step taken by the defendant in the proceeding. Strictly, until the stay point was finally disposed of, the court would not be properly seized of the matter. Moreover, in his view, to require the defendant to file a defence while the defendant was still pursuing his contention for a stay would be prejudicial to the defendant. He reasoned (at p. 96-97):-

“The point is that while a defendant is seeking to stay the proceeding, whether by way of original application or an appeal, the defendant should not be required to meet the plaintiff’s claim on the merits. A defendant is entitled to focus his attention on the appeal for a stay and not be distracted by running two contradictory courses of action at the same time.”

6 At this juncture it would be appropriate for us to look at the case of The Jarguh Sawit which Woo JC relied upon. There, the defendants unsuccessfully applied to set aside the writ under O 12 r 7 of the Rules of Court on the ground that the court had no jurisdiction in the admiralty action instituted by the plaintiffs. In their defence and counterclaim filed, the defendants reiterated the jurisdictional point. The plaintiffs applied for summary judgment and also to strike out the jurisdiction point pleaded in the defence on the ground that the latter issue had already been determined. The Assistant Registrar struck out the jurisdictional issue pleaded in the defence and this decision was upheld by the High Court. As regards the action proper, the defendants were given conditional leave to defend. The defendants were dissatisfied and appealed to the Court of Appeal. This Court upheld the decision below that the defendants were not entitled to raise the jurisdictional issue again, the point having been previously decided. It was res judicata. What were considered germane by Woo JC were the views expressed by this Court when dealing with the jurisdictional point:-

“30. Firstly, whether or not a court has jurisdiction is, of necessity, a question logically prior to the substantive dispute of the parties. Unless and until a court is properly seized, it cannot adjudicate on the matter …

34. The Rules of Court also contemplate that the matter of jurisdiction should be determined once and for all at the interlocutory stage. The Rules clearly suggest that jurisdiction is finally determined at the stage where an application is made under O 12 r 7 ….

35. A party to an action brought in Singapore may dispute jurisdiction after having first entered an appearance by an application made by summons under O 12 r 7. This does not amount to a submission to jurisdiction: O 12 r 7(5). Order 12 r 7(2) then prescribes that a defendant may dispute jurisdiction by making an interlocutory application by a summons in chambers. …”

7 It seems to us that as a matter of logic, it makes absolute sense that when the question of stay is put in issue that should first be determined before any further step is taken by either party in the action. In the context of an arbitration clause, it is all the more so as under s 6(1) of the Arbitration Act it is expressly provided that the party who wants a stay of the court proceeding should apply “after appearance and before delivering any pleading or taking any other step in the proceeding.” Once the stay question is finally determined, then everything else will follow from that.

The facts

8 We now set out in brief the facts of the present case. The three respondents, the plaintiffs in the action, were the developers of a 30-storey office building right in the heart of town. The appellants, Samsung, were the main contractors of the project. There were apparently delays in the completion of the project as a result of which the Architect of the project (“the Architect”) issued a delay certificate in favour of the respondents. The respondents sought payment under the certificate, relying on the temporary finality provisions in clause 31(11) of the Singapore Institute of Architects conditions of contract (“SIA contract”). Because of the appellants’ refusal to honour the certificate, the respondents instituted the present action to compel payment. The appellants entered appearance and applied for a stay on the ground that there was an arbitration clause in the SIA contract.

9 Due to the requirement in the current O 14 r 1, the respondents could not apply for summary judgment because no defence had yet been filed. At the hearing of the stay application before the Assistant Registrar, the appellants orally applied for an extension of time to file their defence until after the stay application had been finally decided (including any appeals therefrom). At the same time, the respondents also applied orally for leave to file the O 14 application without waiting for the defence to be filed by the appellants in order to ensure that both the stay application as well as the O 14 application could be heard together, as was the practice under the previous rule.

10 Invoking the inherent powers of the court spelt out in O 92 r 4, the Assistant Registrar granted leave to the respondents to file their O 14 application without the defence having been filed by the appellants. To safeguard the position of the appellants, she also ordered that whatever affidavits filed by the appellants to resist the O 14 application would not be viewed as steps taken in the proceeding. She further granted the appellants’ application that they need not file the defence until the stay application had been finally disposed of. She lastly ordered that both the stay application and the O 14 application should be heard together. Pursuant to...