Tjo Kwe In v Chia Song Kwan

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin JC
• Judgment Date: 22 July 2002
• Neutral Citation: [2002] SGHC 156
• Docket Number: Originating Summons No 434 of 2002
• Date: 22 July 2002
• Published date: 19 September 2003
• Year: 2002
• Plaintiff Counsel: Simon Tan (Chui, Sim, Goh & Lim)
• Citation: [2002] SGHC 156
• Defendant Counsel: Vijaya (Sam & Wijaya)
• Court: High Court (Singapore)
• Subject Matter: Plaintiff's lawyer failing to act expeditiously in filing application,When such application to be made to High Court,Extension of time,O 3 r 4 & O 55D r 14 Rules of Court (1997 Ed),O 55D r 14 Application for extension of time under Rules of Court,When such application to be made to court below,Civil Procedure,Application for extension of time to file and serve notice of appeal,Whether to grant extension of time

summons was for a stay of execution of judgment pending appeal. Mr Tan had waited until 8 May 2002, more than five months after the original deadline for filing the notice of appeal, to withdraw that prayer. That would have obstructed or delayed enforcement action by the defendant. The defendant has obviously been prejudiced (see 16).

Case(s) referred to

Chen Chien Wen v Pearson

[1991] SLR 578 (folld)

Tan Thye Heng v Pan Mercantile

[1989] SLR 973 (distd)

Legislation referred to

Rules of Court (Cap 322), O 3 r 4 and O 55D r 14

Judgment

GROUNDS OF DECISION

1 This is an appeal by the Plaintiff against my order of 8 May 2002 dismissing his application in OS 434 of 2002 for extension of time to file a notice of appeal against the decision of District Judge Laura Lau of 12 November 2001 in DC Suit No.784/2000.

2 The Defendant had commenced two actions in the District Court against the Plaintiffs, viz. DC Suit No.229/2000 and the aforementioned DC Suit No.784/2000. These two actions were consolidated and District Judge Laura Lau dismissed the first one and gave judgment for the Defendant (i.e. the plaintiff in the suit) in the second. The Plaintiff naturally was happy with the decision in DC Suit No.229/2000, but not so with that in DC Suit No.784/2000.

3 The last day of filing of the Notice of Appeal permitted by the rules was 26 November 2001. On 23 November, the Plaintiff instructed his solicitors to file the appeal. He did this by telephone as he was in Japan at the time. However the appeal was not filed on time. His counsel, Mr Simon Tan, explained what had happened in an affidavit filed in this summons:

3. The [Plaintiff] instructed us to appeal against the decision of the learned District Judge… His instructions were given before the period to appeal expired on 26 November 2001.

4. However, we discovered that our client did not have the funds in our client’s account to deposit the sum of S$3,000 with the Accountant-General. As he was outstationed in Japan, he could only give us the sum of S$3,000 upon his return from Japan which he eventually did on 7 December 2001.

5. On his assurance that he will put me in funds upon his return, I issued a .. cheque … dated 26 November 2001 in favour of the Accountant-General but my court clerk was unable to file the application before the expiry date on 26 November 2001. …

6. On 5 December 2001, I proceeded to apply to the Subordinate Courts for leave to file the Notice of Appeal out of time.

7. On 17 January 2002, the application was heard by … Magistrate Mr Adam Nakhoda and I was given leave to withdraw the application on the basis that it should have been filed in the High Court pursuant to Order 55D Rule 14 of the Rules of Court.

8. On 30 January 2002, my firm re-filed the application electronically but due to inadvertence on my firm’s part, it was re-fixed [for] hearing again in the Subordinate Courts despite the fact that we indicated that this application was to be heard in the High Court.

9. The application came up for hearing on 18 March 2002 and it was heard by … District Judge Laura Lau … whereby she gave me leave to withdraw the application again with no order as to costs.

4 It would appear from Mr Tan’s affidavit, and indeed he conceded before me, that there were three mistakes made by his firm:

(i) failing to file the Notice of Appeal on 26 November 2001;

(ii) on 5 December 2001, applying for leave to appeal out of time by way of SIC in the action in the District Court instead of by Originating Summons in the High Court; and

(iii) on 30 January 2002, filing the Originating Summons in the Subordinate Courts instead of the High Court.

It was only on the fourth attempt on 28 March 2002 in the present summons that Mr Tan’s firm was able to get it correct. By that time slightly over four months had elapsed since 26 November 2001, the date due to file the Notice of Appeal under the Rules of Court. In connection with these three mistakes there were three instances of unexplained delays as I shall elaborate below.

Mistake No. 1

5 In respect of the failure to file the Notice of Appeal on 26 November 2001, Mr Tan gave some explanation in Chambers about his firm’s cheque being unacceptable that I was unable to make sense of. He certainly did not elaborate in his affidavit why his court clerk was unable to file the application on that day. Neither did he back it up with any document. The long and short of it is that he had failed to file a Notice of Appeal by the date due under the Rules of Court.

Delay No. 1

6 By itself, this mistake is not necessarily fatal. Any solicitor would have taken immediate steps to rectify it by making an application to extend time. Unfortunately Mr Tan chose not to take any immediate action. Instead he waited a good eight days before filing in such an application on 5 December 2001. He gave no explanation in his affidavit for this delay.

Mistake No. 2

7 But he still was unable to get it right. Instead of making an application to the High Court, he applied to the Subordinate Courts. Order 55D of the Rules of Court provides for appeals from the Subordinate Courts to the High Court. In respect of an application for extension of time to file and service notice of appeal, O 55D r 14 provides as follows:

Without prejudice to the power of the High Court under Order 3, Rule 4, to extend the time prescribed by any provision of this Order,...