Tan Chiang Brother's Marble (S) Pte Ltd v Permasteelisa Pacific Holdings Ltd

• Jurisdiction: Singapore
• Judgment Date: 04 April 2002
• Date: 04 April 2002
• Docket Number: Civil Appeal No 8 of 2001
• Court: Court of Appeal (Singapore)

Tan Chiang Brother's Marble (S) Pte Ltd

Plaintiff

and

Permasteelisa Pacific Holdings Ltd

Defendant

[2002] SGCA 21

Chao Hick Tin JA

and

Tan Lee Meng J

Civil Appeal No 8 of 2001 (Notice of Motion No 8 of 2002)

Court of Appeal

Civil Procedure–Appeals–Leave–Claim at trial exceeding $250,000–Subject matter of appeal to Court of Appeal not exceeding $250,000–Bona fide claim–Whether need for leave to file appeal–Section 34 (2) (a)Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed)–Civil Procedure–Appeals–Notice–Notice of appeal served out of time–Whether extension of time for service should be granted–Factors to consider–Courts and Jurisdiction–Jurisdiction–Interlocutory–Single judge of Court of Appeal striking out notice of appeal on ground that leave required and not obtained–Whether single judge has jurisdiction to strike out appeal–Words and Phrases–“At the trial”–Section 34 (2) (a)Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed)

PPH engaged Tan Chiang as subcontractors for three projects. Tan Chiang instituted Suit No 14/2001 against PPH for the balance of payments due under the three projects, and its claim at the trial exceeded $250,000. After the trial judge delivered her judgment, Tan Chiang filed its notice of appeal against part of the judgment, having already informed PPH of its intention to appeal. However, the notice was not served on PPH within the prescribed time.

Subsequently, PPH filed a motion (No 3/2002) to set aside the notice of appeal on two broad grounds: (a) leave to appeal should have been obtained as the subject matter of the appeal was less than $250,000; and (b) the notice of appeal was not served on PPH within the prescribed time. The motion came before S Rajendran J, sitting as a single judge of the Court of Appeal under s 36 (1) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“SCJA”). Though he was inclined to grant an extension of time for service, he nevertheless struck out the notice of appeal on the ground that it was necessary for Tan Chiang to first obtain leave of court because the value of the subject matter of the appeal was less than $250,000.

Tan Chiang filed this motion (No 8/2002) essentially to ask the court to review and set aside the ruling made by Rajendran J. The substantive issue concerned the interpretation of s 34 (2) (a) of the SCJA, which provided that where “the amount or value of the subject matter at the trial is $250,000 or less” no appeal would be brought to the Court of Appeal except with the leave of the Court of Appeal or a judge.

Held, allowing the application:

(1) A single judge had no jurisdiction under s 36 (1) of the SCJA to strike out an appeal. The orders to be made under the first two categories in s 36 (1), ie any incidental direction and any interim order to prevent prejudice, were premised on the existence of an appeal and the need for certain interim orders or directions to safeguard the interest of the parties pending the disposal of the appeal. An application to strike out an appeal could not be considered to be an order of that interlocutory nature: at [9].

(2) The words “at the trial” in s 34 (2) (a) of the SCJA should not be read to mean “at the appeal”. The determining factor was not the amount or the value of the subject matter of the appeal, but the amount or value of the subject matter of the civil suit. The right to appeal depended on the value of the claim at the trial and not the award given by the trial judge. It could be different if bad faith could be shown in the formulation of the claim. Additionally, a party who unreasonably inflated his claim might be penalised when the question of costs arose for consideration: at [20], [21], [22] and [24].

(3) The quantum of the claim at the trial was well in excess of $250,000. There was no suggestion that this was not a bona fide claim. Accordingly, no leave of court needed to be obtained by Tan Chiang to file the appeal (CA No 8/2001): at [25].

(4) The factors which the court should take into account in exercising its discretion whether to extend time to enable a party to file a notice of appeal were (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if time was extended; and (d) the degree of prejudice to the would-be respondent if the application was granted: at [27].

(5) Tan Chiang had explained the delay, caused in part by the change in the system of filing following the expansion of the electronic filing system to civil appeals. The appeal was not without merits. As the delay was only some nine days and PPH was notified that an appeal was being filed, there was no prejudice. In the circumstances, an extension of time for service ought to be given: at [29] and [30].

Boyd v Bischoffsheim [1895] 1 Ch 1 (folld)

Chan Kee Beng v Ramasamy Naidu [1939] MLJ 113 (folld)

Dreesman v Harris (1854) 9 Exch 485; 156 ER 207 (folld)

Mason v Burningham [1949] 2 KB 545 (folld)

Mayer v Burgess (1855) 4 El & Bl 655; 119 ER 241 (folld)

Nomura Regionalisation Venture Fund Ltd v Ethical Investments Ltd [2000] 2 SLR (R) 926; [2000] 4 SLR 46 (refd)

Pearson Judith Rosemary v Chen Chien Wen Edwin [1991] 2 SLR (R) 260; [1991] SLR 212 (folld)

Spandeck Engineering (S) Pte Ltd v Yong Qiang Construction [1999] 3 SLR (R) 338; [1999] 4 SLR 401 (refd)

Twin Enterprises Pte Ltd v Lim Heng Wah Peter [2000] SGHC 288 (refd)

Yai Yen Hon v Teng Ah Kok & Sim Huat Sdn Bhd [1997] 1 MLJ 136 (folld)

Rules of Court (Cap 322, R 5, 1997 Rev Ed) O 57 r 4

Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) s 34 (2) (a) (consd);ss 36 (1), 36 (3)

Ng Yuen (Ng & Koh) for the applicant/appellant

Neo Kim Cheng Monica (Chan Tan LLC) for the respondent.

Chao Hick Tin JA

(delivering the grounds of judgment of the court):

1 This motion (No 8 of 2002), filed by the appellants, Tan Chiang Brother's Marble (S) Pte Ltd (“Tan Chiang”)...