Syed Nomani v Chong Yeow Peh

JurisdictionSingapore
JudgeChoo Han Teck J
Judgment Date24 May 2017
Neutral Citation[2017] SGHC 117
Plaintiff CounselAmirul Hairi bin Mohamed Rawi (I.R.B. Law LLP)
Date24 May 2017
Docket NumberHC/RAS No 10 of 2017 (DC 1797 of 2016))
Hearing Date26 April 2017
Subject MatterCivil procedure,Representative proceedings
Published date30 May 2017
Defendant CounselPeh Chong Yeow (Advent Law Corporation)
CourtHigh Court (Singapore)
Citation[2017] SGHC 117
Year2017
Choo Han Teck J:

The most basic rule in any litigation is that the correct parties are named in the action. It requires discipline and, often, the responsibility falls on both sides. Sometimes a misjoinder or nonjoinder may be rectified under O 15 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the Rules”). Sometimes it may not. In any case, it is incumbent upon the solicitors to get the parties right and to have their names correctly spelled. In this case, the defendant is named as Chong Yeow Peh, but he told the court that his name is actually Peh Chong Yeow. It was not explained why this was not pointed out to the plaintiff, or, if it was, why nothing was done to correct the writ.

Peh Chong Yeow appeared to represent himself but says that he is not a litigant-in-person because his firm (Peh Chong Yeow is a practising lawyer) is acting for him, with him as the solicitor on record. That may be so, but when Peh Chong Yeow appears to address the court in respect of a suit in which Peh Chong Yeow himself is a defendant, he is a litigant-in-person as far as the court is concerned at the hearing.

The substantive matter before this court was an appeal against the order of a District Judge affirming the decision of a Deputy Registrar to dismiss the plaintiff appellant’s application that the defendant respondent, Peh, be appointed as a representative defendant on behalf of himself and 11 others in the plaintiff’s action for the recovery of legal fees pursuant to an agreement allegedly reached between the plaintiff, the defendant and 11 others. I dismissed the appeal and now give my reasons.

The defendant and 13 others were involved in the purchase of strata units in a condominium hotel property in Canada from the Le Soleil Group (“the Group”). Disputes arose and the Group brought three lawsuits against the defendant and 13 others in Canada. The plaintiff offered to help with their legal issues. The plaintiff alleges that in 2008, the plaintiff, defendant and 13 others entered into a written agreement regarding the sharing of legal fees (“the Agreement”) for the purposes of defending the Canadian action. The defendant argues that the plaintiff was not a party to the Agreement.

The plaintiff originally commenced this action in the High Court against the defendant in his (the defendant’s) personal capacity on 20 December 2014, claiming S$1,440,000 as liquidated damages for alleged breaches of the Agreement, but this claim was struck out by the High Court and subsequently not pursued. In the same action, the plaintiff also claimed $1,1163,764 in Canadian dollars for the legal fees he allegedly paid to Canadian lawyers on behalf of the defendant and 11 others due under the Agreement. This claim was allowed to proceed on a pro-rated basis (since only the defendant had been personally named in the action), which meant that the amount due had to be amended to the smaller sum of S$72,735.25. The plaintiff accordingly amended and filed his statement of claim on 30 December 2015. Given the significantly lower value of the claim, the action was transferred to the State Courts (District Court Suit 1797 of 2017) (“the Suit”).

Two of the 13 other persons involved in the Agreement conceded liability to the plaintiff. The plaintiff now hopes for the court to make an order appointing the defendant to represent the remaining 11 persons so that the plaintiff can claim all of the respective pro-rated shares of the legal fees. None of the 11 persons were named in the Suit. On 15 August 2016, the plaintiff made an application under O 15 r 12 of the Rules in the State Courts for the defendant to be appointed a representative defendant to represent and defend himself and 11 others. The Deputy Registrar dismissed the application primarily because the defendant did not have any consent, agreement, or authority from the potential represented defendants to represent them. The District Judge upheld this decision. He noted that in representative defendant actions, each of the potential represented defendants may have a different defence to the claim and the court had to be very careful in ensuring that a representation order would not prejudice the potential represented defendants. The other potential represented defendants had not given consent to such representation. The representation order would also unduly protract the proceedings to the defendant’s detriment.

The question before me was whether the District Court was wrong to dismiss the plaintiff’s application for the representation orders. The plaintiff’s application was made under O 15 r 12 of the Rules, which reads:

Representative proceedings (O. 15, r. 12)

Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in Rule 13, the proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them. At any stage of the proceedings under this Rule the Court may, on the application of the plaintiff, and on such terms, if any, as it thinks fit, appoint any one or more of the defendants or other persons as representing whom the defendants are sued to represent all, or all except one or more, of those persons in the proceedings; and where, in the exercise of the power conferred by this paragraph, the Court appoints a person not named as a defendant, it shall make an order under Rule 6 adding that person as a defendant.

Under O 15 r 12(1) of the Rules, proceedings may be begun as representative actions without leave of court. This is to be done by an indication of representative capacity on the writ of...

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1 books & journal articles
  • Civil Procedure
    • Singapore
    • Singapore Academy of Law Annual Review No. 2017, December 2017
    • 1 December 2017
    ...[2017] 4 SLR 728. 17 [2017] 1 SLR 609; see also para 8.236 below. 18 [2018] 1 SLR 108. 19 [2017] SGHC 18. 20 Cap 332, 2005 Rev Ed. 21 [2017] 4 SLR 1064. 22 [2017] SGHC 295. 23 [2017] SGHC 35. 24 [2017] SGHC 318. 25 [2017] SGHC(I) 11. 26 [2017] SGHC 282; see also paras 8.163–8.164 below. 27 ......

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