Syed Mohamed Abdul Muthaliff and Another v Arjan Bhisham Chotrani

• Jurisdiction: Singapore
• Judgment Date: 01 February 1999
• Date: 01 February 1999
• Docket Number: Civil Appeal No 111 of 1998
• Court: Court of Appeal (Singapore)

Syed Mohamed Abdul Muthaliff and another

Plaintiff

and

Arjan Bhisham Chotrani

Defendant

[1999] SGCA 91

Yong Pung How CJ

,

L P Thean JA

and

Tan Lee Meng J

Civil Appeal No 111 of 1998

Court of Appeal

Civil Procedure–Extension of time–Unless order–Clients failing to comply with unless order–Clients' counterclaim struck out–Power of court to extend time where unless order not complied with–Principles governing grant of extension of time–Whether default intentional and contumelious or contumacious–Whether any prejudice to advocate and solicitor–Whether penalty proportionate to default

The respondent, an advocate and solicitor, had acted for the appellants in previous matters. The respondent sued the appellants for his legal fees and the appellants filed a counterclaim, alleging negligence, breach of contract and breach of duty of care on the part of the respondent. The respondent subsequently discontinued his claim against the appellants and requested the appellants to furnish further and better particulars of the counterclaim. Later, on application by the respondent, the deputy registrar ordered the appellants to file and serve the required further and better particulars on the respondent within ten days, in default thereof, the counterclaim was to be struck out without further order (“the unless order”). The deadline for filing expired on 15 August 1997.

On the morning of 16 August 1997, the respondent obtained an order striking out the appellants' counterclaim with costs at 9.52am. Unknown to the respondent, the appellants had earlier on the same day attempted to file the required further and better particulars after having them stamped at 9.31am but were unable to do so as they were out of time. The appellants appealed against the striking-out order and applied for the reinstatement of their counterclaim as well as an extension of time to file and serve the required further and better particulars. The appeal was dismissed by the district judge, as well as the High Court on appeal. The appellants appealed.

Held, allowing the appeal:

(1) The decision of the judge below was made in the exercise of judicial discretion. As such, the appeal court should only intervene if the judge had misdirected himself with regard to the principles in accordance with which his discretion had to be exercised, or if the judge in exercising his discretion, had taken into account matters which he ought not to have done or failed to take into account matters which he ought to have done or if the judge's decision was plainly wrong: at [9].

(2) The power of the court to extend the time for complying with an unless order should be exercised cautiously. The onus was on the defaulting party to show why his failure to obey the order did not warrant the striking out of the claim. The default must not have been intentional and contumelious or contumacious. The crux of the matter was that the party seeking to escape the consequences of his default must show that he had made positive efforts to comply but was prevented from doing so by extraneous circumstances: at [10], [12], [13] and [14].

(3) Prejudice to the other party was also a factor to be taken into account. The nature of the relief sought by the defaulting party and whether or not the penalty imposed was proportionate to the default in question were relevant: at [15].

(4) On the evidence, the court accepted that the appellants did try to comply with the unless order and their default was not intentional and contumelious or contumacious: at [21].

(5) In the light of the appellants' clean record, the very thin margin of default and the absence of uncompensatable damage or prejudice to the respondent, the appellants' default did not warrant the striking out of their counterclaim: at [24].

Caribbean General Insurance Ltd v Frizzell Insurance Brokers Ltd [1994] 2 Lloyd's Rep 32 (folld)

Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666 (folld)

Jokai Tea Holdings Ltd, In re [1992] 1 WLR 1196; [1993] 1 All ER 630 (folld)

R G Carter (West Norfolk) Ltd v Ham Gray Associates Ltd55 Con LR 71 (refd)

Samuels v Linzi Dresses Ltd [1981] QB 115 (folld)

Tang Liang Hong v Lee Kuan Yew [1997] 3 SLR (R) 576; [1998] 1 SLR 97 (refd)

Tokai Maru, The [1998] 2 SLR (R) 646; [1998] 3 SLR 105 (folld)

Vishva Apurva, The [1992] 1 SLR (R) 912; [1992] 2 SLR 175 (refd)

Michael Hwang SC and Mak Wei Munn (Allen & Gledhill) and K Murali Pany (V Ramakrishnan & Co) for the appellants

Arjan Bhisham Chotrani and Haresh Kamdar (Arjan & Co) for the respondent.

Tan Lee Meng J

(delivering the grounds of judgment of the court):

1 This is an appeal against the learned judge's decision to disallow the appellants' application for an extension of time to file and serve further and better particulars of their counterclaim and to uphold the order of the deputy registrar striking out the appellants' counterclaim [see Syed Mohamed Abdul Muthaliff v Arjan Bhisham Chotrani [1998] 2 SLR (R) 532]. We allowed the appeal and now give our reasons.

Background

2 The respondent, an advocate and solicitor, acted for the appellants in the purchase and mortgage of a property and in litigation pertaining thereto.

3 On 3 July 1996, the respondent sued the appellants for his legal fees. On 5 August 1996, judgment in default of defence was entered against the appellants. Upon the application of the appellants, the judgment was set aside on 28 August 1996 on condition that the defence was filed within 14 days. On 9 September 1996, the appellants filed their defence and counterclaim. In their counterclaim, the appellants alleged negligence, breach of contract and breach of duty of care on the part of the respondent. On the same day that the appellants filed their defence and counterclaim, the respondent filed a notice of discontinuance of his claim against the appellants.

4 On 18 July 1997, the respondent requested the appellants to furnish further and better particulars of the counterclaim by 25 July 1997. On 29 July 1997, the appellants' solicitors replied as follows:

You have given us an unreasonably short time of one week to...