The "Osprey"

CourtCourt of Three Judges (Singapore)
JudgeChao Hick Tin JA
Judgment Date23 December 1999
Neutral Citation[1999] SGCA 87
Citation[1999] SGCA 87
Subject MatterO 18 r 19(1) Rules of Court,Striking out,Whether appellants' inability to adduce evidence to support claim constitutes ground for striking out,Bills of lading,Identity of contracting carrier,Admiralty and Shipping,Principles applicable,Reasonable cause of action,Abuse of process,Frivolous and vexatious,Effect of attestation clause,Pleadings,Whether necessary for appellants to adduce all evidence at interlocutory stage,Civil Procedure,Parties to contract
Plaintiff CounselR Srivathsan and Subashini (Haridass Ho & Partners)
Defendant CounselPhilip Tay and Chia Song Yeow (Rajah & Tann)
Published date19 September 2003
Docket NumberCivil Appeal No 150 of 1999
Date23 December 1999

(delivering the grounds of decision of the court): This was an appeal against the decision of the High Court ordering the appellants` statement of claim (as amended) be struck out and their action be dismissed. Against the decision the appellants appealed. We allowed the appeal and now give our reasons.

Circumstances in which the appeal arose

The circumstances in which the appeal arose were as follows. The vessel `Osprey` was arrested on 13 July 1996 by Kolon International Corporation (`the second respondents`) in the action, Adm in Rem 234/96, in which the second respondents were the plaintiffs. The ship was later sold pursuant to an order of court in that action and the proceeds from the sale were paid into court.

The appellants, Mya Yadanar Enterprise Ltd, were the owners of a cargo consisting of deformed steel bars loaded on board the vessel at the time of the arrest. The appellants had purchased the cargo from a company, Swiss Singapore Overseas Enterprises Pte Ltd (`Swiss Singapore`) and were the holders of a bill of lading PK/YGN-001 dated 8 July 1996 (`the bill of lading`) evidencing the shipment of the cargo for carriage from Port Klang to Yangon, Myanmar. As a result of the arrest of the vessel, the appellants had to have the cargo discharged, surveyed and transshipped to another vessel for carriage to Yangon.

Thereafter, they commenced the present action, Adm in Rem 625/96, against the owners of the vessel (`the shipowners`), the first respondents, claiming damages for breach of contract for failure to deliver the cargo at Yangon, Myanmar. The appellants claimed the sums of US$578,349 and S$133,703.73 being the losses incurred. The writ was served on the vessel on 9 October 1996, but the owners did not enter an appearance to the action. On 9 October 1998, the appellants obtained interlocutory judgment. On 18 January 1999, the second respondents obtained leave to intervene in the present action. Following that, the second respondents on 19 February 1999 applied, by way of notice of motion, to set aside the interlocutory judgment and to strike out the statement of claim. The application was heard by Lai Siu Chiu J who set aside the interlocutory judgment but gave leave to the appellants to amend their statement of claim; she also gave leave to the second respondents to defend the claim.

Pursuant to the order, the appellants on 3 June 1999 amended their statement of claim. The second respondents, however, remained undaunted, and on 13 July 1999, they again applied, by way of a notice of motion, to strike out the appellants` amended statement of claim. The application was also heard before Lai Siu Chiu J, and on this occasion, the second respondents were successful. The learned judge allowed the application and ordered the appellants` amended statement of claim be struck out and the action dismissed. The appellants appealed against her decision. After the appeal was filed the appellants obtained an order expediting the hearing of this appeal, and on that basis the appeal was heard before us.

Striking out

Under O 18 r 19(1)(a) to (d) of the Rules of Court, the court may strike out any pleading and dismiss the action on any of the grounds stated there. In this case, the second respondents` application for striking out the appellants` amended statement of claim was expressed to be based on most of the grounds, namely, that it discloses no reasonable cause of action, is frivolous and vexatious and/or is an abuse of the process. It is well-established that the power of striking out will only be exercised in plain and obvious cases. In Tan Eng Khiam v Ultra Realty Pte Ltd [1991] SLR 798 , 803; [1991] 3 MLJ 234, 237, GP Selvam JC (as he then was) said:

Courts are reluctant to strike out a claim summarily either under O 18 r 19 of the RSC or the inherent jurisdiction. This is anchored on the judicial policy to afford the litigant the right to institute a bona fide claim before the courts and to prosecute it in the usual way. Whenever possible, the courts will let the plaintiff proceed with the action unless his case is wholly and clearly unarguable: see Blue Town Investments Ltd v Higgs & Hill plc [1990] 1 WLR 696 and Oxy Electric Ltd v Zainuddin [1991] 1 WLR 115.

And in Ko Teck Siang v Low Fong Mei & Anor and other actions [1992] 1 SLR 454 , this court approved and followed Wenlock v Moloney [1965] 2 All ER 871, 874 where...

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70 cases
  • Chee Siok Chin and Others v Minister for Home Affairs and Another
    • Singapore
    • High Court (Singapore)
    • 7 December 2005
    ...cases that the power to strike out should be exercised: Gabriel Peter & Partners v Wee Chong Jin [1998] 1 SLR 374 at [18]; The Osprey [2000] 1 SLR 281 at [6]. A bona fide litigant will not be prevented from pursuing a remedy unless the substance of the claim is plainly and unquestionably un......
  • Low Heng Leon Andy v Low Kian Beng Lawrence
    • Singapore
    • High Court (Singapore)
    • 10 May 2013
    ...v MSCT Plan No 301 [2005] 3 SLR (R) 157; [2005] 3 SLR 157 (folld) Ong Beng Chong v Goh Kim Thong [2010] SGHC 195 (folld) Osprey, The [1999] 3 SLR (R) 1099; [2000] 1 SLR 281 (folld) Sledmore v Dalby (1996) 72 P & CR 196 (folld) Tan Chui Lian v Neo Liew Eng [2007] 1 SLR (R) 265; [2007] 1 SLR ......
  • Botanica Pte Ltd v Management Corporation Strata Title Plan No 2040
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    • High Court (Singapore)
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    ...the plaintiff’s cause of action is “certain to fail” when only the allegations in the pleading are considered (see The “Osprey” [1999] 3 SLR(R) 1099 at [7]). In other words, the plaintiff’s cause of action must fail as a matter of law even without the need for the court to embark on a factu......
  • The "Eagle Prestige"
    • Singapore
    • High Court (Singapore)
    • 23 March 2010
    ...the meaning of “frivolous or vexatious” and “abuse of process” as decided by our Court of Appeal in two cases: In The Osprey [1999] 3 SLR(R) 1099, LP Thean JA reiterated at [8] that the words “frivolous and vexatious [in O 18 r 19(b)] mean actions which are “obviously unsustainable” or “wro......
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3 books & journal articles
  • Civil Procedure
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2000, December 2000
    • 1 December 2000
    ...SLR 233.) As to the court”s inherent jurisdiction to strike out proceedings, it has been reiterated by the Court of Appeal in The Osprey[2000] 1 SLR 281 at 284 that: “[T]his … was never intended to be exercised by a minute and protracted examination of the documents and facts of the case, i......
  • Admiralty and Shipping Law
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2000, December 2000
    • 1 December 2000
    ...the identity of the carrier contractually liable under a bill of lading is hotly disputed. The Arktis Sky[2000] 1 SLR 57 and The Oxprey[2000] 1 SLR 281 concerned such disputes. The High Court in The Arktis Sky had the easier task in dealing with a bill of lading with an “identity of carrier......
  • Admiralty and Shipping Law
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2001, December 2001
    • 1 December 2001 that particular plaintiff. SHIPPING LAW Identifying the contract carrier 2.29 In commenting on the High Court decision in The Osprey[2000] 1 SLR 281 in the last Annual Review ((2000) SAL Ann Rev 13—16), reference was made to the English High Court decision in The Starsin[2000] 1 Lloyd”s ......

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