Suresh Agarwal v Naseer Ahmad Akhtar

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JA; Quentin Loh J
• Judgment Date: 14 October 2019
• Neutral Citation: [2019] SGCA 55
• Court: Court of Appeal (Singapore)
• Hearing Date: 13 September 2019
• Docket Number: Civil Appeal No 58 of 2019
• Plaintiff Counsel: The appellant in-person
• Defendant Counsel: Khoo Boo Teck Randolph and Vanessa Chiam Hui Ting (Drew & Napier LLC)
• Subject Matter: Civil Procedure,Striking Out
• Published date: 17 October 2019

Tay Yong Kwang JA: The facts

This appeal was brought against the order of the Judge in the High Court striking out the appellant’s application in Summons No 1757 of 2018 (“SUM 1757”). SUM 1757 was taken out in Originating Summons No 624 of 2017 (“OS 624”). Having heard the parties on 13 September 2019, we dismissed the appeal although we disagreed with some of the grounds in the Judge’s decision. We now set out our reasons.

The appellant held 34.7% and the respondent held 64.3% of the shares in a company called Infotech Global Pte Ltd (“ITG”). The remaining 1% was held by one Pang Hee Hon (“Pang”).¹

Disputes emerged among the three shareholders of ITG. On 25 June 2015, the appellant commenced a minority oppression action in High Court Suit No 631 of 2015 (“S 631”) against the respondent.² S 631 was fixed for trial in October 2017.³

Sometime in May 2017, the appellant and the respondent began discussions with a view to settling S 631. The action was eventually discontinued on 30 May 2017.⁴

The respondent took the position that S 631 was discontinued pursuant to a settlement agreement that was reached between the parties sometime in late-May 2017. On 6 June 2017, the respondent took out OS 624⁵ against the appellant and Pang, seeking a determination that there was such a settlement agreement among the parties pursuant to which S 631 was discontinued and pursuant to which the parties agreed to put an end to all disputes between them. The respondent also sought in OS 624 to enforce a term in the settlement agreement for the appellant and Pang to transfer their shares in ITG to the respondent for $100.⁶

On 12 April 2018, the appellant took out SUM 1757 in OS 624 and prayed for the following reliefs:⁷ That judgment be entered in favour of the appellant against the respondent in the sum of $10,359,120 with interest thereon and costs Alternatively, that there be an inquiry as to the sums due and payable by the respondent to the appellant and payment be made by the respondent to the appellant of such sums found due and payable Costs of and incidental to this application be paid by the respondent to the appellant.

On 7 January 2019, after having heard the cross-examination of witnesses, the Judge ruled in OS 624 that the respondent had failed to prove that there was a conclusive agreement that the appellant and Pang would transfer their shares to the respondent.⁸ Accordingly, the Judge dismissed OS 624 and added that “[f]or the avoidance of doubt, the [respondent] and the [appellant] are at liberty to bring claims contained within S 631 against each other”.⁹

After the Judge’s decision in OS 624 on 7 January 2019, the parties appeared before the Judge again on 21 February 2019 in relation to SUM 1757. It was on this occasion that the Judge struck out SUM 1757.

The Judge relied on three grounds in her oral judgment. First, that the appellant’s claim for final relief in SUM 1757 could not be brought by way of a summons within an Originating Summons (“OS”).¹⁰ Second, there were clearly substantial disputes of fact between the parties. Third, the appellant’s claims went well beyond the scope of OS 624.¹¹

On the first ground, the Judge was prepared to waive the procedural irregularity by treating SUM 1757 as notice of a counterclaim under O 28 r 7(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the Rules”).¹² In relation to the second ground, the Judge was prepared to allow the conversion of the counterclaim in SUM 1757 to a writ action under O 28 r 8 given the substantial disputes of fact involved.¹³ However, she noted that the appellant was not asking for his application to be treated as a counterclaim or for it to be converted to a writ action. Even if the Judge should decide to do the two things stated above in order to assist the appellant (who also appeared in person before the High Court), the Judge stated that, pursuant to O 28 r 7(3), she had to consider whether the subject matter of the counterclaim should be disposed of in that manner. The appellant’s claims in SUM 1757 went well beyond the scope of OS 624. The Judge was of the view that “the OS should be confined to its original scope” and stated that the OS was effectively concluded in fact, since she had dismissed the OS at the earlier hearing. The Judge decided that it was not a suitable case for the appellant’s claim to be considered a counterclaim in the OS and for the proceedings to be converted to a writ action. Accordingly, the Judge struck out SUM 1757.

Issues in this appeal

We will now discuss the three grounds stated by the Judge in dismissing SUM 1757.

Whether final relief can be claimed in an interlocutory application in an OS

Counsel for the respondent cited Independent State of Papua New Guinea v PNG Sustainable Development Program Ltd [2016] 2 SLR 366 (“PNG”) at [27] for the proposition that final reliefs could only be sought by way of an originating process and not through an interlocutory application. In that case, the plaintiff in an OS sought a declaration that it was entitled to inspect and take copies of all true accounts, books of account and/or records of the defendant. The OS was an offshoot of an action in Suit 795 of 2014. A summons in Suit 795, which had prayed for the same relief as the OS, was dismissed on the ground that the relief prayed for, being final, had to be sought by way of an originating process rather than through an interlocutory application in Suit 795. As a result, the OS was commenced.

Counsel for the respondent was not aware of any other authority for the above proposition on procedure in PNG, which was apparently relied upon by the Judge in this case. Although PNG involved an interlocutory application within a writ action, instead of an OS as in this case, we do not think that makes a material difference to the perceived principle relating to procedure. We saw no reason why prayers for final relief could only be brought by way of an originating process. Many claims for final relief can be brought by way of interlocutory processes under the Rules. For example, O 14 r 2(1) provides that applications for summary judgment are to be brought by way of summons. In practice, applications to strike out pleadings under O 18 r 19 are brought by way of summons. Likewise, in practice, applications for judgments or orders upon admissions under O 27 r 3 are brought by way of a summons. All these applications are capable of resulting in final relief for the applicant. It is clear, therefore, that the Rules as well as practice allow final relief to be claimed by way of interlocutory applications within a writ action. As mentioned above, we do not see why the same procedure should not apply in the case of an OS.

Counsel for the respondent also relied on this Court’s decision in Rank Xerox (Singapore) Pte Ltd v Ultra Marketing Pte Ltd [1991] 2 SLR(R) 912 for the test in determining whether an order is an interlocutory or a final one. However, we think this is irrelevant here as the said test was only for the purpose of determining whether leave to appeal to the Court of Appeal had to be obtained under the then existing version of s 34(2) of the Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed). It is certainly not an authority for the proposition that final reliefs could not be claimed by way of an interlocutory application within a writ action or an OS.

Accordingly, we respectfully disagreed with the Judge insofar as she held that the appellant’s claim for final relief in SUM 1757 could not be brought by way of a summons within an OS.

Were there substantial disputes of fact

Order 28 r 8(1) of the Rules, which governs the conversion of an OS into a writ action, is set out below for convenience:

Continuation of proceedings as if cause or matter begun by writ (O. 28, r. 8)

8.—(1) Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that pleadings shall be delivered or that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof.

It was common ground that before the court exercises its discretion under O 28 r 8(1) to convert an OS into a writ action, the threshold requirement that a substantial dispute of fact is likely to arise had to be met: see Singapore Civil Procedure 2018: Vol 1...