Thu Aung Zaw v Ku Swee Boon (trading as Norb Creative Studio)

• Jurisdiction: Singapore
• Judge: Tan Siong Thye J
• Judgment Date: 27 October 2017
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 325 of 2017, Registrar's Appeal from the State Courts No 23 of 2017 (District Court Summons No 1246 of 2017)
• Date: 27 October 2017

Thu Aung Zaw

and

Ku Swee Boon (trading as Norb Creative Studio)

[2017] SGHC 265

Tan Siong Thye J

Originating Summons No 325 of 2017, Registrar's Appeal from the State Courts No 23 of 2017 (District Court Summons No 1246 of 2017)

High Court

Civil Procedure — Amendments — Sole proprietorship named as plaintiff in summary judgment application by mistake — Whether amendment of name of party allowed after summary judgment entered

Civil Procedure — Summary judgment — Setting aside — Leave to appeal against summary judgment sought after two years' delay — Whether abuse of court's process

Civil Procedure — Summary judgment — Setting aside — Sole proprietorship named as plaintiff in summary judgment application by mistake — Whether summary judgment should be set aside

Held, dismissing the application in OS 325/2017 and the appeal in RAS 23/2017:

(1) The District Court was not functus officio when summary judgment in DC 3647 was granted and thus had the power to grant the Amendment Application. A court would be functus officio when it had made a final decision. But the doctrine existed to ensure finality and thus did not extend to situations where non-substantive amendments were made. This power to make non-substantive amendments after delivery of judgment also applied to summary judgments, as long as the amendment only corrected an irregularity and did not substantively vary the decision: at [19], [20] and [23].

(2) In the present case, the amendment was not substantive. Although Norb was a sole proprietorship that could not have sued in its own name, the decided cases showed that it was no bar to an amendment application that the original plaintiff was not vested with the legal cause of action. If, for whatever reason, the party originally named as plaintiff could not hold the legal cause of action, such an irregularity was nonetheless curable by amendment: at [26] to [29].

(3) Order 20 r 5(3) of the ROC required the party seeking the amendment to have made a genuine mistake in naming the wrong party; and the effect of the mistake had to not have been to mislead the respondent or to cause any reasonable doubt as to the identity of the party bringing the claim. Both requirements were satisfied in the present case. Ku's mistake in naming Norb as the plaintiff in DC 3647 was genuine. Both parties appeared to have laboured under the misapprehension that the papers were properly filed and it was only when Thu filed his application to set aside the bankruptcy application and the summary judgment that this issue came to light. At that point, Ku immediately applied to amend Norb's name to his own: at [31].

(4) The second requirement was also satisfied. Thu had contested the statutory demand and the bankruptcy application that were served on him in 2013. Although Thu had not applied to set aside the summary judgment entered against him in 2015 until nearly two years later, he had known in truth and in substance the identity of the party bringing the claim against him. Indeed, Thu had the opportunity to depose on affidavit that he had been misled by Norb being the plaintiff on record, but he chose not to do so. Instead, Thu only contested Ku's claims on the basis that the proceedings were not properly constituted. Accordingly, Thu had not been misled nor did Norb's name being on the record cause any reasonable doubt as to the identity of the party bringing the claim: at [33] and [34].

(5) Thu was not prejudiced by the granting of the Amendment Application. The prejudice that O 20 r 5(3) of the ROC aimed to protect against was that suffered by a respondent who had been misled into thinking that the applicant was some other party because of the difference in name. But in the present case, Thu had not been deprived of the chance to make an argument that he would had otherwise made if Ku was on the record instead of Norb. Accordingly, Thu's appeal in RAS 23 was dismissed and the Amendment Application was allowed: at [37].

(6) In OS 325, Thu sought declarations that the summary judgment and the guarantee were void as Norb lacked the legal capacity to bring the claim in DC 3647 and to enter into the guarantee. Thu also sought a stay of the bankruptcy application. Since the Amendment Application was allowed, these prayers became unsustainable and were dismissed: at [44], [45] and [48].

(7) Thu's alternative prayer in OS 325 was for leave to appeal against the summary judgment in DC 3647. However, Thu admitted that it had been close to two years since the summary judgment was granted and that it would have been unmeritorious for him to apply for an extension of time to appeal against the summary judgment. Thus, this was a backdoor strategy to circumvent the appeal process and was an abuse of the court's process. Accordingly, this prayer was also dismissed: at [46] and [50].

[Observation: In any event, the Amendment Application would have been allowed under O 20 r 11 of the ROC. The error in the name of the plaintiff in this case arose from an accidental slip or omission and the court would also have exercised its discretion under O 20 r 11 of the ROC to allow the amendment given that Thu suffered no prejudice: at [41].]

Case(s) referred to

Godfrey Gerald QC v UBS AG [2004] 4 SLR(R) 411; [2004] 4 SLR 411 (refd)

Hughes v Pump House Hotel Co Ltd (No 2) [1902] 2 KB 485 (refd)

Lim Yong Swan v Lim Jee Tee [1992] 3 SLR(R) 940; [1993] 1 SLR 500 (refd)

Mohamed Mustafa v Syed Ahmad [1972] 2 MLJ 241 (refd)

Noble Lowndes and Partners v Hadfields Ltd [1939] Ch 569 (refd)

Oversea-Chinese Banking Corp Ltd v Measurex Corp Bhd [2002] 2 SLR(R) 684; [2002] 4 SLR 578 (refd)

Philip Securities (Pte) v Yong Tet Miaw [1988] 1 SLR(R) 566; [1988] SLR 594 (refd)

Sunny Daisy Ltd v WBG Network (Singapore) Pte Ltd [2008] 4 SLR(R) 769; [2008] 4 SLR 769 (refd)

Thu Aung Zaw v Norb Creative Studio [2014] SGHC 67 (refd)

Facts

Thu Aung Zaw (“Thu”) was a partner of Adlogic Asia LLP (“Adlogic”) and Ku Swee Boon (“Ku”) the sole proprietor of Norb Creative Studio (“Norb”). Adlogic and Norb contracted for the latter to print booklets of discount dining vouchers for the former. In return, Norb required Thu and another partner of Adlogic to furnish a personal guarantee. When Adlogic could not pay for the cost of printing the booklets, Norb sued Thu on the guarantee for the unpaid sum and obtained summary judgment against Thu in District Court Suit No 3647 of 2014 (“DC 3647”) under O 14 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”).

When Thu failed to pay the judgment debt, Norb took out bankruptcy proceedings against Thu in High Court Bankruptcy Proceedings No 2527 of 2016. In response, Thu took out Originating Summons No 325 of 2017 (“OS 325”). He sought to stay the bankruptcy application by setting aside, rendering void, or obtaining leave to appeal against the summary judgment, which formed the basis of the bankruptcy action. Thu argued that Norb, as a sole proprietorship, could not commence an action against him, since O 77 r 9 of the ROC required a sole proprietorship to commence an action in the name of the sole proprietor. Ku then filed District Court Summons No 1246 of 2017 in the District Court, seeking leave under O 20 r 5(3) of the ROC to amend the name of the plaintiff in the summary judgment from Norb to “Ku Swee Boon (trading as Norb Creative Studio)” on the basis that he had made a mistake when he filed DC 3647 (the “Amendment Application”). The District Court allowed the Amendment Application and Thu appealed to the High Court by way of Registrar's Appeal from the State Courts No 23 of 2017 (“RAS 23”).

Legislation referred to

Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 20 r 5(3), O 20 r 11 (consd); O 14, O 20 r 5, O 20 r 5(1), O 77 r 9

Ong Ying Ping and Chew Zijie (Ong Ying Ping Esq) for the applicant in OS 325/2017 and the appellant in RAS 23/2017;

Tan Wen Cheng Adrian and Janus Low (August Law Corporation) for the respondent in OS 325/2017 and RAS 23/2017.

27 October 2017

Tan Siong Thye J:

Introduction

1 Thu Aung Zaw (“Thu”), the appellant, took out two related actions against Ku Swee Boon (“Ku”), the respondent. The two actions were as follows:

(a) Registrar's Appeal from the State Courts No 23 of 2017 (“RAS 23”). In RAS 23, Thu appealed against the decision of the district judge (“the District Judge”) upholding the decision of the deputy registrar allowing Ku to amend the plaintiff's name in a summary judgment obtained in District Court Suit No 3647 of 2014 (“DC 3647”) from Ku's sole proprietorship, Norb Creative Studio (“Norb”), to Ku's own name (the “Amendment Application”).

(b) Originating Summons No 325 of 2017 (“OS 325”). In OS 325 Thu had four prayers:

(i) That the summary judgment and guarantee (see below at [3]–[4]) were void as these were in Norb's name. Norb lacked the legal capacity to bring the claim in DC 3647 and/or to enter into a guarantee.

(ii) Alternatively, that the summary judgment against Thu be set aside.

(iii) Alternatively, that leave be granted to Thu to appeal against the summary judgment.

(iv) As a consequence of the above three grounds, that the bankruptcy application that Norb had taken out against Thu in High Court Bankruptcy Proceedings No 2527 of 2016 (“HC/B...