Syed Mohamed Abdul Muthaliff and Another v Arjan Bhisham Chotrani

• Jurisdiction: Singapore
• Judgment Date: 30 May 1998
• Date: 30 May 1998
• Docket Number: District Court Appeal No 74 of
• Court: High Court (Singapore)

Syed Mohamed Abdul Muthaliff and another

Plaintiff

and

Arjan Bhisham Chotrani

Defendant

[1998] SGHC 187

Kan Ting Chiu J

District Court Appeal No 74 of 1997

High Court

Civil Procedure–Judgments and orders–Enforcement–Failure to comply with “unless” order–Counterclaim struck out–Whether failure to comply with order intentional and contumelious–Burden on defaulting party to explain failure

The defendants were ordered to file further and better particulars to their counterclaim against the plaintiff by 15 August 1997, in default thereof their counterclaim would be struck out without further order (“the unless order”). The defendants did not file the particulars expired. Consequently the plaintiff obtained an order of court striking out the counterclaim. The defendants applied to set aside the order of 16 August 1997 striking out the counterclaim and for an extension of time to file the particulars. The application was dismissed by a deputy registrar on 28 August 1997. The defendants appealed against the order of 16 August 1997 but the district judge dismissed the appeal. The defendants appealed against the district judge's decision to the High Court. No appeal was filed against the order of 28 August 1997.

Held, dismissing the appeal:

(1) A court has discretionary power to extend the time where an “unless” order has been made but not been complied with, but it is a power which should be exercised cautiously as it is necessary to maintain the principle that orders are made to be complied with and not ignored. The party in default must show that the failure to comply with the “unless” order was not intentional or contumelious, and that he had the intention to comply but was prevented from doing that. The burden is on the defaulting party to explain its failure to comply, as disobedience of a peremptory order would generally amount to contumelious conduct which would justify striking out a fresh action for the same cause: at [8] to [10].

(2) From the affidavit filed by the defendant, the court could not find any circumstances that excused the delay. The defendants failed to explain and justify the failure to comply with the “unless” order: at [15] to [18].

Jokai Tea Holdings Ltd, Re [1993] 1 All ER 630 (folld)

Samuels v Linzi Dresses Ltd [1980] 1 All ER 803 (folld)

Tolley v Morris [1979] 2 All ER 561 (folld)

V Ramakrishnan (V Ramakrishnan & Co) for the appellants/defendants

Haresh Kamdar (Arjan & Co) for the...