The "Melati" (No 2)

• Jurisdiction: Singapore
• Judgment Date: 15 April 2004
• Date: 15 April 2004
• Docket Number: Civil Appeal No 134 of 2003
• Court: Court of Appeal (Singapore)

The “Melati”

[2004] SGCA 16

Yong Pung How CJ

,

Chao Hick Tin JA

and

Tan Lee Meng J

Civil Appeal No 134 of 2003 (Notices of Motion Nos 16 and 21 of 2004)

Court of Appeal

Civil Procedure–Appeals–Leave–Judge in chambers allowing extension of time to file statement of claim and allowing statement of claim filed out of time to stand–Whether appellant required to obtain leave of court to appeal to Court of Appeal–Section 34 (2) (d) Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed)

The Melati suffered a casualty in the course of its voyage. On 5 March 2002, the cargo owners took out a writ in rem against the shipowners. The in rem writ was served on 12 March 2002. Appearance was entered on 20 March 2002, but the cargo owners did not take any steps in the proceedings until 18 March 2003 when they filed and served a Statement of Claim out of time.

The appellant objected to the service of the Statement of Claim in breach of O 18 r 1 of the Rules of Court (Cap 322 R 5, 1997 Rev Ed) (“the ROC”) and on the ground that the action was deemed discontinued under O 21 r 2 (6). The respondent applied to court seeking the court's leave to extend time for filing of the Statement of Claim; a declaration that the Statement of Claim filed and served on 18 March 2003 be deemed regular and in accordance with the ROC; and in the alternative, they sought to reinstate the action.

The assistant registrar dismissed the application and ordered the Statement of Claim filed be “struck out”. The respondent appealed to the judge in chambers who allowed the appeal. She extended the time for filing of the Statement of Claim and retrospectively validated the service of the Statement of Claim effected on 18 March 2003. The appellant requested for a certification that the judge required no further arguments and the judge duly so certified. A Notice of Appeal was filed. Eight days after the appellant's case was filed, the respondent alleged, for the first time, that the appellant had failed to obtain leave of court under s 34 (2) (d) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“the Act”).

Pursuant to this, two motions were brought before the Court of Appeal. The first motion was brought by the respondent seeking to strike out the appeal. The second motion was an application by the appellant seeking leave of the court, in the event that the court should hold that leave was required for the filing of the appeal.

Held, dismissing the first motion (second motion consequently withdrawn):

(1) The fundamental question related to the true nature of the orders made by the judge. The judge, in exercising her discretion to extend time to enable the cargo-owners to file their Statement of Claim out of time and to allow the Statement of Claim already filed on 18 March 2003 to stand, had not refused to strike out a Statement of Claim. The orders made by the assistant registrar should have had no bearing at all, they having been set aside by the judge in exercise of her confirmatory jurisdiction. The nature or effect of the orders made by the judge should be apparent from the orders themselves. But, if the orders were at all unclear, reference should then be made to the prayers in the application concerned: at [10] and [18].

(2) It was true that s 34 (2) (d) of the Act did not elaborate on what would constitute or amount to a refusal to strike out a Statement of Claim, but that was addressed in O 18 r 19 (1) of the ROC. Here, the judge was not dealing with any arguments that the Statement of Claim should be struck out. Hence, the orders of the judge were not orders refusing to strike out a Statement of Claim. They were really interlocutory orders which would come under s 34 (1) (c) of the Act: at [20], [22] and [23].

Herbs and Spices Trading Post Pte Ltd v Deo Silver (Pte) Ltd [1990] 2 SLR (R) 685; [1990] SLR 1234 (refd)

Lassiter Ann Masters v To Keng Lam [2004] 2 SLR (R) 392; [2004] 2 SLR 392 (refd)

Rank Xerox (Singapore) Pte Ltd v Ultra Marketing Pte Ltd [1991] 2 SLR (R) 912; [1992] 1 SLR 73 (refd)

Rules of Court (Cap 322, R 5, 1997 Rev Ed) O 18 r 1, O 18 r 19, O 18 r 19 (1), O 21 r 2 (6), O 21 r 2 (8)

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

Lim Tean and Probin Dass (Rajah & Tann) for the appellants

Kenneth Lie and Chow Sy Hann (Joseph Tan Jude Benny) for the respondents.

Chao Hick Tin JA

(delivering the judgment of the court):

1 Two motions were before this court in relation to Civil Appeal No 134 of 2003. The first was by the respondent cargo owners seeking to strike out...