Sim Hok Khun @ Hadi Gunawan v Henry Budi Harsono @ Sim Hok Kiong
Jurisdiction | Singapore |
Judge | Jordan Tan AR |
Judgment Date | 11 April 2012 |
Neutral Citation | [2012] SGHCR 1 |
Court | High Court (Singapore) |
Hearing Date | 09 April 2012 |
Docket Number | Suit No 8 of 2012/T (Summons No 642 of 2012/Q) |
Plaintiff Counsel | Vinodh Coomaraswamy SC, Terence Seah and Christine Ong (Shook Lin & Bok LLP) |
Defendant Counsel | Lin Shumin, Cavinder Bull SC, Lim Gerui, Lee Xin Jie (Drew & Napier LLC) |
Subject Matter | Civil Procedure |
Published date | 12 April 2012 |
The plaintiff and the defendant are the third and seventh brothers respectively in a family of seven brothers and three sisters. The plaintiff brought this suit against the defendant for breach of trust, seeking a declaration that,
The defendant applied for a stay of the proceedings on the ground of
Having raised this issue of whether the shares are part of the Trust and stating that this is likely to form part of the defence in Singapore should the action proceed, the defendant’s counsel, Ms Lin Shumin proceeded to set out the connecting factors to Hong Kong under Stage One of the test laid down in
I deal with this preliminary objection first before addressing the substance of the application.
Is the defendant precluded from obtaining a stay having obtained an extension of time to file a defence?The writ of summons was filed on 4 January 2012 and the defendant entered an appearance on 11 January 2012. On 20 January 2012, the defendant filed Summons 324 of 2012 (“Sums 324/2012”) for an extension of time to file his defence. The plaintiff consented and the consent order was recorded before an Assistant Registrar on 25 January 2012. Mr Coomaraswamy made the following argument:
[W]here a defendant served in Singapore as of right intends to seek to stay the action on grounds of
forum non conveniens , he must make that applicationbefore taking any step other than filing an appearance , especially as here where the step which the defendant took is available only to a defendant who intends to defend the action on the merits in Singapore. [emphasis in original]
In making this argument, Mr Coomaraswamy referred to
The very reason why a defendant is required to apply for a stay of proceedings before taking any step other than filing an appearance is because such an other step may be construed as submission to the court’s jurisdiction.
Mr Coomaraswamy was quick to clarify that although
Mr Coomaraswamy argued that in seeking leave for more time to file the defence, the defendant had evinced an intention to defend the action.A defendant who enters an appearance in,
and intends to defend , an action must, unless the Court gives leave to the contrary, serve a defence on the plaintiff before the expiration of 14 days after the time limited for appearing or after the statement of claim is served on him, whichever is the later. [emphasis added]
I reject this argument. An application for a stay on the ground of
The analogy drawn was thus erroneous. While the taking of a step in the proceedings apart from the entering of an appearance may be fatal to an application for a stay for want of jurisdiction under O 12 r 7(1) because it demonstrated submission to jurisdiction, it did not have the same effect where an application for a stay on the ground of
Furthermore, it could hardly be said that the defendant evinced an intention to defend the action when one scrutinises the words of O 12 r 7(2). That provision reads as follows:
A defendant who wishes to contend that the Court should not assume jurisdiction over the action on ground that Singapore is not the proper forum for the dispute shall enter an appearance and,
within the time limited for serving a defence , apply to court for an order staying the proceedings. [emphasis added]
Previously, O 12 r 7(2) contained no such time restriction on the making of an application under that provision. It was amended by Rules of Court (Amendment No 2)...
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