Teng Fuh Holdings Pte Ltd v Collector of Land Revenue

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 09 March 2007
• Neutral Citation: [2007] SGCA 14
• Docket Number: Civil Appeal No 31 of 2006
• Date: 09 March 2007
• Published date: 12 March 2007
• Year: 2007
• Plaintiff Counsel: Tan Kay Kheng and Aw Charmian (Wong Partnership)
• Citation: [2007] SGCA 14
• Defendant Counsel: Eric Chin (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Subject Matter: Certiorari and mandamus,Whether application for leave for order of certiorari and mandamus made out of time,Remedies,Whether sufficient grounds for leave for order of certiorari and mandamus to be granted under O 53 r 1(1) of Rules of Court existing,Order 53 r 1 Rules of Court (Cap 322, R 5, 2004 Rev Ed),When three-month period under O 53 r 1(6) of Rules of Court commencing,Administrative Law

9 March 2007 Judgment reserved.

Kan Ting Chiu J (delivering the judgment of the court):

Background

1 The appellant, Teng Fuh Holdings Pte Ltd, applied on 30 September 2005 for leave to apply for an order of certiorari (now known as a quashing order) and an order of mandamus (now known as a mandatory order) under O 53 of the Rules of Court (Cap 322, R 5, 2004 Rev Ed).

2 The appellant wanted the quashing order to quash a declaration No 638 of 1983 dated 26 February 1983 made under s 5 of the Land Acquisition Act (Cap 152, 1985 Rev Ed) (“the Act”) which stated that the appellant’s land and property at Mukim 25 Lots 498, 348 and 350 (“the land”) was to be acquired because it was needed for “a public purpose, viz: General Redevelopment”.

3 The appellant wanted the mandatory order to be issued against the respondent, the Collector of Land Revenue, Singapore, to reconvey the land to it upon repayment of the compensation paid for the acquisition.

Basis for the application

4 The appellant argued that the orders should be made on grounds that the acquisition was made ultra vires and in bad faith because:

(a) the land had not been redeveloped, but had been left in the state it was in at the time of acquisition, leased back to the appellant, which has remained in occupation as licensee; and

(b) the land, which was zoned “Industrial” when it was acquired, was rezoned “Residential” under the 1993 Kallang Development Guide Plan.

The rules of court applicable

5 The appellant needed leave to apply for the orders because O 53 r 1(1) of the Rules of Court in the then-prevailing form using the original names of the orders provided that:

No application for an order of mandamus, prohibition or certiorari shall be made unless leave to make such an application has been granted in accordance with this Rule.

6 The appellant faced a difficulty right from the outset. It had to explain why it had not filed its application till 30 September 2005, more than 22½ years from the declaration of 26 February 1983.

7 Rule 1(6) of O 53 refers to the time in which such applications are to be made. Rule 1(6) states that:

[L]eave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made within 3 months after the date of the proceeding or such other period (if any) as may be prescribed by any written law or, except where a period is so prescribed, the delay is accounted for to the satisfaction of the Judge to whom the application for leave is made; …

At the time of the acquisition, the period for application was six months. The period was reduced to three months in December 2004.

8 The appellant made a disingenuous argument that its application was not out of time. The appellant apparently did not know that the land was rezoned as “Residential” in the 1993 Kallang Development Guide Plan till 2004. In September 2004, the appellant came to know of the change in zoning. It obtained legal advice on the legality of the acquisition and it instructed its solicitors who wrote to the Ministry of Law on 7 September 2004 to appeal for the land to be returned to it. It did not hear from the Ministry till 13 July 2005, when it was informed that the request was rejected. The appellant argued that the time for application should run from 13 July 2005, and its application filed on 30 September 2005 was filed within time.

The decision below

9 The appellant’s application came on for hearing before Andrew Phang Boon Leong J (as he then was) and his judgment is reported in [2006] 3 SLR 507. Phang J dismissed the application. On appeal before us, the parties essentially repeated the arguments made before him.

The issues

Was the period for application three months or six months?

10 Order 53 r 1(6) had been amended in December 2004 when the three-month period was put in place of the previously-prescribed six-month period. Did this rule apply retrospectively to the appellant’s application? There were no transitional provisions or statements which addressed that. There is room for argument whether such an amendment on the time limit for action applied retrospectively to the appellant’s application to quash the declaration of 26 February 1983. The issue to be addressed is whether the amendment affected the appellant’s vested right of appeal, or whether it only related to the procedure by which the right was to be exercised.

11 The Ydun [1899] P 236, a decision of the English Court of Appeal, dealt with a similar situation. The plaintiff’s vessel suffered damage on 13 September 1893. The plaintiff alleged that the damage was caused by the negligence of the defendant in the execution of its public duty, and issued a writ on 14 November 1898. In the intervening period, an act came into effect on 1 January 1894 which provided that such actions must be commenced within six months of the alleged negligence. The court had to decide whether the act applied to the action filed. The court ruled that it did, and that the action was filed out of time. A L Smith LJ held at 245:

The rule applicable to cases of this sort is well stated by Wilde B. in Wright v. Hale [(1860) 6 H & N 227 at 232], namely, that when a new enactment deals with rights of action, unless it is so expressed in the Act, an existing right of action is not taken away. But where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act. [emphasis added]

12 In Yew Bon Tew v Kenderaan Bas Mara [1983] 1 MLJ 1, a decision of the Privy Council from Malaysia, the action-limitation change operated in the reverse and lengthened the time period. This was a claim for personal injuries arising from a traffic accident which occurred on 5 April 1972. At that time, the applicable limitation period was 12 months, but it was amended and extended to 36 months in June 1974. The plaintiff’s action was filed in March 1975, after the original 12-month limitation had set in, but within the extended 36-month period. The issue before the court was whether the action was filed within time. Lord Brightman, delivering the judgment of the board, held at 2–3 that it was not:

[T]here is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past. There is however said to be an exception in the case of a statute which is purely procedural, because no person has a vested right in any particular course of procedure, but only a right to prosecute or defend a suit according to the rules for the conduct of an action for the time being prescribed.

But these expressions “retrospective” and “procedural”, though useful in a particular context, are equivocal and therefore can be misleading. A statute which is retrospective in relation to one aspect of a case (e.g. because it applies to a pre-statute cause of action) may at the same time be prospective in relation to another aspect of the same case (e.g. because it applies only to the post-statute commencement of proceedings to enforce that cause of action); and an Act which is procedural in one sense may in particular circumstances do far more than regulate the course of proceedings, because it may, on one interpretation, revive or destroy the cause of action itself.

[emphasis added]

and at 5:

In their Lordships’ view, an accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is in every sense a right, even though it arises under an act which is procedural. It is a right which is not to be taken away by conferring on the statute a retrospective operation, unless such a construction is unvoidable. [emphasis added]

13 If the right to plead a time bar is a right that is preserved in the absence of a clear statement to the contrary, the right to commence action within a specified time should likewise be preserved in the same circumstances, and as the appellant here had the right to file its application within six months from the date the declaration was made, that right to apply should not be reduced to three months when the rule was amended in December 2004.

14 In this case, whether the period was three months or six months, the application was not made within time. If the construction to be given would determine whether the application was made within or out of time, we are inclined to the latter period because the appellant had the right to apply within six months when its land was acquired, and that right should not be removed except by a clear and unequivocal provision.

When does the period run?

15 In the hearing below, Phang J had found at [16]:

[I]t is my view that the three-month period under O 53 r 1(6) ought to run from the time the Ministry of Law responded to an inquiry by...