Tanner Sheridan Wayne v NRG Engineering Pte Ltd

• Judgment Date: 07 November 2013
• Date: 07 November 2013
• Docket Number: District Court Suit No 324 of 2012 (Registrar's Appeal Subordinate Courts No 152 of 2013)
• Court: High Court (Singapore)

Tanner Sheridan Wayne

Plaintiff

and

NRG Engineering Pte Ltd

Defendant

[2013] SGHC 233

Quentin Loh J

District Court Suit No 324 of 2012 (Registrar's Appeal Subordinate Courts No 152 of 2013)

High Court

Civil Procedure—Offer to settle—Withdrawal of offer to settle—Acceptance served within 24 hours of offeror's service of ‘Notice of Withdrawal of Offer’—When offer to settle validly withdrawn such that offeree could no longer accept—Order 22 A rr 3 (2) and 3 (3) Rules of Court (Cap 322, R 5, 2006 Rev Ed)

The defendant served an offer to settle pursuant to O 22 A of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) on the plaintiff on 30 April 2013 (‘the Offer to Settle’). The offer was not expressed to be limited as to the time within which it was open for acceptance. On 18 June 2013 at 8.11 am, the defendant's solicitors wrote to the plaintiff's solicitors giving them, as required under O 22 A r 3 (2) of the Rules of Court, one day's notice of their intention to withdraw the Offer to Settle. On the next day, 19 June 2013, at 9.39 am, the defendant's solicitors served a ‘Notice of Withdrawal of Offer’ in Form 34 as prescribed in the Rules of Court by way of electronic service. This was followed by service of a hard copy of the same by hand at the offices of the plaintiff's solicitors at 2.30 pm.

On 20 June 2013 at 8.56 am, some 23½hours after the ‘Notice of Withdrawal of Offer’ in Form 34 was served on them, the plaintiff's solicitors served an ‘Acceptance of Offer’ in Form 35 at the offices of the defendant's solicitors.

The plaintiff filed an application for judgment to be entered against the defendant in the terms of his 20 June 2013 ‘acceptance’ of the Offer to Settle. The defendant contended that the Offer to Settle had already been withdrawn. A Deputy Registrar of the Subordinate Courts dismissed the plaintiff's application and his appeal to a district judge was also dismissed. The plaintiff appealed to the High Court with the leave of the district judge.

Held, dismissing the appeal:

An offer to settle was effectively withdrawn upon the service of the ‘Notice of Withdrawal of Offer’ in Form 34 by the offeror, provided one day's prior notice of the intention to withdraw had been given. There was no statutorily implied one-day minimum period after such service within which it was still open for the offeree to accept the offer to settle: at [24] .

Chia Kim Huay v Saw Shu Mawa Min Min [2012] 4 SLR 1096 (not folld)

Indo Commercial Society (Pte) Ltd v Ebrahim [1992] 2 SLR (R) 667; [1992] 2 SLR 1041 (refd)

SBS Transit Ltd v Koh Swee Ann [2004] 3 SLR (R) 365; [2004] 3 SLR 365 (folld)

Sheriffa Taibah bte Abdul Rahman v Lim Kim Som [1992] 1 SLR (R) 375; [1992] 2 SLR 516 (refd)

Teo Gim Tiong v Krishnasamy Pushpavathi [2013] SGHC 178 (refd)

Rules of Court (Cap 322, R 5, 1997 Rev Ed)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 22 A r 3 (2) , O 22 A r 3 (3) (consd) ;O 22 A, O 22 A r 1, O 22 A r 3 (1) , O 22 A r 3 (4) , O 22 A r 3 (5) , O 22 A r 6, O 22 r 6 (1)

Civil Procedure Rules 1998 (SI 1998 No 3132) (UK) rr 36.3 (6) , 36.3 (7) , 36.9 (1) , 36.9 (2)

Rules of Civil Procedure (OReg 575/07) (Can) rr 49.02, 49.04 (1) , 49.07 (1)

Uniform Civil Procedure Rules 2005 (NSW) rr 20.26 (1) , 20.26 (11) , 20.27 (1) , 20.28 (1)

Rasanathan s/o Sothynathan and Nazirah d/o Kairo Din (Colin Ng & Partners LLP) for the plaintiff

Kelvin Chia Swee Chye (Samuel Seow Law Corporation) for the defendant.

Judgment reserved.

Quentin Loh J

Introduction

1 This appeal raises the issue: when is an offer made pursuant to the offer to settle regime under O 22 A of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) validly withdrawn such that the offeree can no longer accept it?

2 The plaintiff, Tanner Sheridan Wayne (‘the Plaintiff’), says that there is a statutorily implied minimum period of one day after a notice of withdrawal in Form 34 of the Rules of Court is served before it can be validly withdrawn. The defendant NRG Engineering Pte Ltd (‘the Defendant’) contends otherwise. The Deputy Registrar of the Subordinate Courts ruled in favour of the Defendant and dismissed the Plaintiff's application to enter judgment pursuant to an ‘acceptance’ of an offer to settle under O 22 A. The Plaintiff appealed and the district judge dismissed the appeal. However, the district judge granted leave to appeal.

The facts

3 Disputes arose between the Plaintiff and the Defendant under an employment contract resulting in the Plaintiff suing the Defendant for unpaid salary, bonuses and commission. The parties understood the benefits of the O 22 A settlement regime and so sought to invoke that process.

4 On 30 April 2013, the Defendant served an offer to settle in the prescribed Form 33 of the Rules of Court proposing a settlement of the Plaintiff's claim at a sum of $45,000 with interest thereon and costs (‘the Offer to Settle’). This Offer to Settle was not expressed to be limited as to the time within which it was open for acceptance (see O 22 A r 3 (2)). On 5 June 2013, the Plaintiff's solicitors spoke to the Defendant's solicitors by telephone, suggesting that the offer should be higher at $60,000 inclusive of interest, legal costs and disbursements. This conversation was confirmed and repeated in a letter sent to the Defendant's solicitors on the same day.

5 On 18 June 2013 at 8.11 am, the Defendant's solicitors sent a letter to the Plaintiff's solicitors by facsimile transmission informing them that the Defendant was rejecting their proposal of 5 June 2013, and that they had instructions to withdraw the Offer to Settle. The letter stated:

... Pursuant to Order 22 A, Rule 3 (2) of the Rules of Court, we hereby serve you the requisite one (1) day's prior notice of our clients' intention to withdraw the said [Offer to Settle]. ...

On the same day at 11.37 am, the Plaintiff purported to accept the Defendant's Offer to Settle by way of a letter via facsimile transmission. However, the purported acceptance was not in the form prescribed by O 22 r 6 (1) of the Rules of Court which provides that the acceptance shall be in Form 35 and served on the offeror. Further, the Defendant's solicitors did not accept service by facsimile transmission.

6 On the next day, 19 June 2013, at 9.39 am, the Defendant's solicitors served a ‘Notice of Withdrawal of Offer’ in Form 34 by way of electronic service using the Electronic Filing System withdrawing the Offer to Settle of 30 April 2013. This was followed, ‘for good measure’, by service of a hard copy of the ‘Notice of Withdrawal of Offer’ by hand at the offices of the Plaintiff's solicitors at 2.30 pm.

7 Finally, on 20 June 2013 at 8.56 am, which I note was some 23½hours after the Defendant had...