Tanner Sheridan Wayne v NRG Engineering Pte Ltd

• Jurisdiction: Singapore
• Judge: Quentin Loh J
• Judgment Date: 07 November 2013
• Neutral Citation: [2013] SGHC 233
• Court: High Court (Singapore)
• Docket Number: District Court Suit No 324 of 2012 (Registrar’s Appeal Subordinate Courts No 152 of 2013)
• Published date: 20 November 2013
• Year: 2013
• Hearing Date: 21 October 2013
• Plaintiff Counsel: Rasanathan s/o Sothynathan and Nazirah d/o Kairo Din (Colin Ng & Partners LLP)
• Defendant Counsel: Kelvin Chia Swee Chye (Samuel Seow Law Corporation)
• Subject Matter: Civil Procedure,offer to settle
• Citation: [2013] SGHC 233

Quentin Loh J: Introduction

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to the offer to settle regime under O 22A of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“Rules of Court”) validly withdrawn such that the offeree can no longer accept it?

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period of one day after a notice of withdrawal in Form 34 of the Rules of Court is served before it can be validly withdrawn.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 22A. The Plaintiff appealed and the District Judge dismissed the appeal. However the District Judge granted leave to appeal.

The facts

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 22A settlement regime and so sought to invoke that process.

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 22A 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.

On 18 June 2013 at 8.11am, 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 22A, 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 11.37am, 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.

On the next day, 19 June 2013, at 9.39am, 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 2.30pm.

Finally, on 20 June 2013 at 8.56am, which I note was some 23 and a half hours after the Defendant had served Form 34 on the Plaintiff electronically, the Plaintiff’s solicitors served an “Acceptance of Offer” of the 30 April 2013 Offer to Settle in Form 35 (“the Purported Acceptance”) on the Defendant at the offices of its solicitors.

On 1 July 2013, the Plaintiff filed his application for judgment to be entered against the Defendant in terms of his 20 June 2013 “Acceptance” of the Defendant’s 30 April 2013 Offer to Settle. The Defendant contended that its Offer to Settle had already been withdrawn.

The Plaintiff’s arguments

The Plaintiff did not contend below or in this appeal that his first purported acceptance of the Offer to Settle on 18 June 2013 at 11.37am by way of a letter sent through facsimile transmission, which was not in the prescribed Form 35, was a valid acceptance. If it was in the prescribed Form 35 and properly served, this would have undoubtedly been a valid acceptance as it would have been made before the Defendant filed the “Notice of Withdrawal of Offer” the next day. Instead, the Plaintiff relies on his Purported Acceptance served on 20 June 2013 at 8.56am and which was in the prescribed Form 35. However, as I have noted, this was some 23 and a half hours after the Defendant had served on him the “Notice of Withdrawal of Offer” in Form 34 by electronic service.

The Plaintiff contends that after a “Notice of Withdrawal of Offer” in Form 34 is filed and served, there is a statutorily implied minimum one day (ie, 24-hour) period during which the Offer to Settle can still be accepted. Counsel for the Plaintiff, Mr Rasanathan s/o Sothynathan (“Mr Rasanathan”), argues this from two fronts: first, this is the correct conclusion when one takes a “deeper, more robust” construction of O 22A r 3(2) read with r 3(3) of the Rules of Court (“the construction argument”); and, secondly, this is the holding of the judgment of the High Court in Chia Kim Huay (litigation representative of the estate of Chua Chye Hee, deceased) v Saw Shu Mawa Min Min and another [2012] 4 SLR 1096 (“Chia Kim Huay”) at [32] (reproduced below at [25]).

In respect of the latter argument, the Plaintiff had argued in the courts below that the judgment in Chia Kim Huay at [32] was ratio decidendi and binding on the Subordinate Courts. Mr Rasanathan submits that as a court of coordinate jurisdiction, I am not bound by it, even if the Plaintiff was right that it formed the ratio decidendi in Chia Kim Huay, but it was commended to me as “highly persuasive authority”.

My decision The statutory provisions

Order 22A rr 1, 3 and 6 read as follows: ORDER 22A OFFER TO SETTLE Offer to settle (O. 22A, r. 1) 1. A party to any proceedings may serve on any other party an offer to settle any one or more of the claims in the proceedings on the terms specified in the offer to settle. The offer to settle shall be in Form 33.

…

Time for acceptance and withdrawal (O. 22A, r. 3) 3.—(1) An offer to settle shall be open for acceptance for a period of not less than 14 days after it is served. If an offer to settle is made less than 14 days before the hearing of the matter, it shall remain open for a period of not less than 14 days unless in the meanwhile the matter is disposed of.

(2) Subject to paragraph (1), an offer to settle which is expressed to be limited as to the time within which it is open for acceptance shall not be withdrawn within that time without the leave of the Court. An offer to settle which does not specify a time for acceptance may be withdrawn at any time after the expiry of 14 days from the date of service of the offer on the other party provided that at least one day’s prior notice of the intention to withdraw the offer is given. (3) The notice of withdrawal of the offer shall be in Form 34. (4) Where an offer to settle specifies a time within which it may be accepted and it is not accepted or withdrawn within that time, it shall be deemed to have been withdrawn when the time expires. (5) Where an offer to settle does not specify a time for acceptance, it may be accepted at any time before the Court disposes of the matter in respect of which it is made.

…

Manner of acceptance (O. 22A, r. 6) 6.—(1) An offer to settle shall be accepted by serving an acceptance of offer in Form 35 on the party who made the offer.

(2) Where a party to whom an offer to settle is made rejects the offer or responds with a counter-offer that is not accepted, the party may thereafter accept the original offer to settle, unless it has been withdrawn or the Court has disposed of the matter in respect of which it was made. (3) Where an offer is accepted, the Court may incorporate any of its terms into a judgment.

[emphasis added]

The Plaintiff’s construction argument

The Plaintiff relies on the language of O 22A r 3(2) and the words used in Form 35 as required pursuant to r 3(3). Because the Offer to Settle did not specify a time for acceptance, r 3(2)...