Teeni Enterprise Pte Ltd v Singco Pte Ltd

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 16 July 2008
• Neutral Citation: [2008] SGHC 115
• Court: High Court (Singapore)
• Published date: 17 July 2008
• Year: 2008
• Plaintiff Counsel: Michael Khoo SC/Andy Chiok (Counsel)/Daniel Atticus Xu (MyintSoe & Selvaraj)
• Defendant Counsel: Goh Hui Nee (C M Hoe Partnership)
• Subject Matter: Civil Procedure
• Citation: [2008] SGHC 115

16 July 2008

Chan Seng Onn J:

Background facts

1 On 23 April 2008, the defendant filed Summons No 1855/2008/J seeking, inter alia:

(1) that judgment be entered against the plaintiff on the defendant’s counterclaim and for the plaintiff’s claim against the defendant to be dismissed due to the plaintiff’s failure to serve all documents contained in the plaintiff’s Supplementary List of Documents (“supplementary list”) within the timeline stipulated by the court pursuant to an “unless order” dated 18 October 2007 (“the unless order”) and pursuant to Order 24 Rule 16 and Order 92 Rule 4 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed);

(2) in the alternative, for the plaintiff to amend the supplementary list filed by deleting references to duplicate items which the plaintiff had listed and/or errors made in relation to the dates of those items reflected in the plaintiff’s supplementary list and to identify those items that were without enclosures.

2 On 9 May 2008, the Assistant Registrar Tan Wen Hsien (“the AR”), heard the summons and dismissed the plaintiff’s claim of $1,069,909.55 (being the price of goods sold and delivered by the plaintiff to the defendant) and entered judgment against the plaintiff on the defendant’s counterclaim for $1,267,477.30 with interest amounting to $98,967.40 on the ground that the plaintiff had breached the unless order.

3 The plaintiff appealed against the decision of the AR. I allowed the appeal. Dissatisfied, the defendant has appealed against my decision. I now state the reasons for my decision.

Non-compliance with the unless order

4 The unless order required the plaintiff to furnish the documents sought by 29 October 2007, failing which the plaintiff’s action would be dismissed and judgment be entered for the defendant’s counterclaim.

5 At the appeal, counsel for the plaintiff accepted that the plaintiff had not produced the following items in the supplementary list by 29 October 2007 (“the six documents”):

(1) Items Nos 117, 218 and 223 of Part 1;

(2) the enclosures to items Nos 194 and 199; and

(3) Item No 25 of Part 1 B.

6 From the notes of evidence at the hearing below, counsel for the plaintiff Mr Daniel Atticus Xu (“Mr Xu”) submitted before the AR that the disobedience must be intentional and contumelious. He explained to the AR that during that period, he was called up by the Law Society to attend before the Inquiry Committee. He was also admitted to Singapore General Hospital for chest pains. He said that he was affected by the Law Society investigations and his health was bad. He said that he furnished all the documents he could find and he had furnished more than 200 documents to the defendant on 29 October 2007. He had tried his best to comply with the order of court. He insisted that any failure to comply with the order of court was unintentional. Mr Xu submitted that the law would not expect the impossible. He said that he did not have the documents with him. Neither did the plaintiff. There was no prejudice to the defendant as the documents in question originated from the defendant. The defendant would have copies of them. He orally applied to the AR to consider an extension of time for him to file a separate list of documents stating the documents which the plaintiff had but were not now in its possession. Mr Xu said that the court must take into account all the circumstances of the case, including the occurrence of prejudice, the nature of the relief sought, and whether the penalty imposed was proportionate to the default.

7 Counsel for the defendant, Ms Goh Hui Nee (“Ms Goh”) argued that the documents furnished after 29 October 2007 showed that the plaintiff did have the documents. Allowing an unless order to be further extended when no formal application had been taken out for extension of time would make a mockery of the system.

8 Ms Goh’s affidavit filed on 23 April 2008 set out the following alleged defaults by the plaintiff:

(a) Plaintiff’s failure to abide by the 1^st direction

Pursuant to SIC No. 2376/2007/Y, which was heard on 4 June 2007, the plaintiff was directed to file and serve the plaintiff’s affidavit verifying the supplementary list and the supplementary list of documents by 18 June 2007 and to produce copies of the documents by 25 June 2007. The plaintiff then served its supplementary list of documents on 18 June 2007 but failed to produce copies of the documents on 25 June 2007.

(b) Plaintiff’s failure to abide by the 2^nd direction

On 13 September 2007, the court at the pre-trial conference (“PTC”) made further directions for the plaintiff to furnish its documents contained in its supplementary list by 20 September 2007.

The plaintiff still failed to furnish its documents contained in the supplementary list despite receipt of 3 faxes from the defendant dated 25 September 2007, 28 September 2007 and 16 October 2007 reminding them to do so.

(c) Plaintiff’s failure to abide by the 3^rd direction

On 16 October 2007, the defendant filed SUM4638/2007/V and the court on hearing the said summons on 18 October 2007 directed the plaintiff to furnish all documents contained in the supplementary list dated 18 June 2007 by 29 October 2007, failing which the plaintiff’s action would be dismissed with costs to the defendant and judgment be entered for the defendant’s counterclaim with costs (i.e. the unless order was made).

In view of the unless order, the plaintiff effected service of the documents contained in the plaintiff’s supplementary list upon the defendant’s solicitors on 29 October 2007.

On examination of the documents served, the defendant discovered that the plaintiff failed to abide by the 3^rd direction by serving on the defendant an “incomplete” set of documents. The defendant then wrote to the plaintiff on 21 November 2007 notifying them (inter alia in paragraph 8 of that letter) that the 6 documents (see [5] above) were not furnished despite the unless order.

(d) Plaintiff’s failure to abide by the 4^th direction

At the PTC hearing on 29 November 207, the defendant informed the court of the plaintiff’s breach of the unless order of 18 October 2007. The court then directed the parties to bring all the documents in the supplementary list that the plaintiff had furnished at the next PTC hearing on 6 December 2007and the court would then decide if the unless order should be enforced. This hearing was adjourned to 13 December 2007.

By 13 December 2007, the plaintiff was still unable to produce all the documents in its supplementary list. At the PTC on 13 December 2007, the court directed the plaintiff to file and serve an affidavit explaining compliance with the unless order by 18 December 2007 and the defendant was to file a reply, if any, by 27 December 2007. The court would then make a final determination on the issue of whether the unless order had been complied with at the next PTC hearing scheduled on the 3 January 2008.

However, the plaintiff failed to file the affidavit explaining compliance by 18 December 2007 despite receipt of the defendant’s fax dated 19 December 2007 reminding them to do so.

(e) Plaintiff’s failure to abide by the 5^th direction

As the plaintiff failed to file its affidavit explaining compliance at the PTC hearing on 3 January 2008, the court gave a further extension for the plaintiff to file its affidavit explaining compliance by 31 January 2008. The next PTC hearing was scheduled on 14 February 2008.

However, the plaintiff again failed to comply with the court’s directions given on the 3 January 2008. At the PTC hearing on 14 February 2008, the issue of compliance with the unless order given on 18 October 2007 was not dealt with. The matter was adjourned to the 28 February 2008.

(f) Plaintiff’s failure to abide by the 6^th direction

On 28 February 2008, the court gave another unless order for the affidavit explaining compliance to be served on the defendant by 4 March 2008 failing which the plaintiff’s action would be dismissed and judgment entered for the defendant’s counterclaim. The court further directed the defendant to take up a summons in chambers application for the matter regarding compliance with the unless order dated 18 October 2007.

On 4 March 2008, the plaintiff filed its affidavit explaining compliance with the unless order dated 18 October 2007. However, the plaintiff again failed to furnish all the missing documents listed in the supplementary list.

The defendant wrote to the plaintiff on 23 April 2008 stating that the plaintiff’s inclusion of the missing documents in its affidavit of 4 March 2008 should not be construed as any acceptance by the defendant of the plaintiff’s documents. The defendant emphasised that it did not accept service of these documents out of time and if any, these documents attached to the plaintiff’s affidavit of 4 March 2008 should and ought to have been served on the defendant within the time prescribed by the court i.e. by 29 October 2007. The plaintiff’s exhibits were merely for the court’s determination of whether the unless order of 18 October 2007 had been breached.

9 The AR stated in her brief reasons that the plaintiff had been warned time and time again of the consequence of its breaches. It still failed to comply with the orders of the court again and again, despite several warnings from the pre-trial conference registrars. No application for extension of time was sought nor was any adequate explanation forthcoming. Under the circumstances, the AR granted prayer (1) of the defendant’s summons (see [1] above).

At the hearing of the appeal

10 At the hearing of the appeal, I focussed on the six documents (i.e. Items 25, 117, 194, 199, 218 and 223), which the defendant alleged were not produced in breach of the unless order.

11 I carefully examined the six documents and all the relevant circumstances to see, inter alia, why the unless order was not complied with, whether the failure to produce had prejudiced the defendant...