Tommy Choo Mark Go & Partners v Kuntjoro Wibawa (alias Wong Kin Tjong)

• Jurisdiction: Singapore
• Judge: Justin Yeo AR
• Judgment Date: 12 June 2017
• Neutral Citation: [2017] SGHCR 9
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 430 of 2017 (Summons No 2109 of 2017)
• Year: 2017
• Published date: 21 June 2017
• Hearing Date: 12 June 2017
• Plaintiff Counsel: Mr Anil Balchandani (I.R.B. Law LLP)
• Defendant Counsel: Ms Christine Chuah (Optimus Chambers LLC)
• Subject Matter: Civil Procedure,Striking Out
• Citation: [2017] SGHCR 9

Justin Yeo AR:

This is an application by the defendant, Kuntjoro Wibawa @ Wong Kin Tjong (“the Defendant”), under O 18 r 19 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“Rules of Court”), to strike out the Originating Summons 430 of 2017 (“OS 430”) filed by the plaintiff, Tommy Choo Mark Go (“the Plaintiff”), on the basis that the High Court does not have the jurisdiction to hear and determine OS 430.¹

Background facts

OS 430 is related to three matters that have been fixed for hearing by the Court of Appeal in late July 2017, namely Civil Appeal Nos 226, 231 and 232 of 2015 (respectively, “CA 226”, “CA 231” and “CA 232”; collectively referred to as “the Appeals”). CA 226 is the Plaintiff’s appeal to the Court of Appeal against the order of the High Court in Tommy Choo, Mark Go & Partners v Kuntjoro Wibawa and other matters [2015] SGHC 239 (“Tommy Choo”), insofar as the High Court did not to allow costs to be paid by the Defendant to the Plaintiff. The Defendant is the respondent in CA 226. CA 231 and CA 232 are cross-appeals by the parties to the Court of Appeal against the decision of the High Court in Tommy Choo, relating to the applications for review of taxation orders. The Plaintiff is the appellant in CA 232 and the respondent in CA 231, while the Defendant is the appellant in CA 231 and the respondent in CA 232.

On 17 April 2017, the Plaintiff filed OS 430 in the High Court, seeking inter alia the following: a declaration that an “offer to settle document” relating to the Appeals, made by the Defendant on 8 March 2017 pursuant to O 22A r 1 of the Rules of Court, is valid; a declaration that an “acceptance document” relating to the Appeals, made by the Plaintiff on 9 March 2017 pursuant to O 22A r 6 of the Rules of Court, is valid; a declaration that the parties have entered into a compromise as identified by the terms listed in the “offer to settle” and “acceptance” documents; a declaration that the Appeals are fully and finally settled, and that the Defendant is to pay the Plaintiff an amount of $106,000; and an order that the parties are to file respective notices of discontinuance in the Appeals within 14 days of the order in OS 430.

OS 430 is fixed to be heard by the High Court on 28 June 2017.

On 8 May 2017, the Defendant filed an application in CA 226, ie Court of Appeal Summons No 53 of 2017 (“SUM 53”), seeking a declaration that the Plaintiff’s acceptance of the offer to settle for CA 226 was valid. SUM 53 did not relate to the offers to settle in CA 231 and CA 232.

On the same day, the Defendant filed the present application to strike out OS 430, together with a draft supporting affidavit (as the Defendant was unable have his affidavit commissioned while away from Singapore). The Defendant’s supporting affidavit was formally filed on 11 May 2017. A reply affidavit was filed on behalf of the Plaintiff on 22 May 2017, and the Defendant filed a final response affidavit on 5 June 2017. The application was fixed to be heard on 12 June 2017.

The present application

When filing the present application, the Defendant did not specify the precise grounds for seeking to strike out OS 430. It transpired at the hearing that the Defendant was proceeding only on two grounds under O 18 r 19 of the Rules of Court, namely: O 18 r 19(1)(b) of the Rules of Court, on the basis that OS 430 is “legally unsustainable”, in that it is “clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks” (citing The Bunga Melati 5 [2012] 4 SLR 546). O 18 r 19(1)(d) of the Rules of Court, on the basis that the bringing of OS 430 is an abuse of the process of the court, in that it creates proceedings that are “manifestly groundless or without foundation or which serve no useful purpose” (citing Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR(R) 582).

At the hearing, both sets of counsel informed me that they had been directed to file any appeal against my decision by 16 June 2017, ie within four days from the hearing of the application. This was to ensure that the timelines concerning the hearing of OS 430 (and potentially, the Appeals) would not be affected. Counsel for the Defendant also emphasised that depending on the outcome of this application, she would need time to take instructions on whether or not an appeal should be filed. As such, I rendered this decision on the same day the application was heard, based on the arguments and authorities submitted to me.

Issues and parties’ arguments

Counsel for the Defendant raised one preliminary issue and one main issue at the hearing.

Preliminary issue: Whether O 22A of the Rules of Court applies to appeals

The preliminary issue was whether the offer to settle regime in O 22A of the Rules of Court (“the O 22A regime”) is applicable to appeals. Counsel for the Defendant explained that she had addressed this point in view of the suggestion in Singapore Civil Procedure 2017 vol 1 (Foo Chee Hock JC gen ed) (Sweet & Maxwell, 2017) (“Singapore Civil Procedure 2017”) at paragraph 22A/1/2, that the Order 22A regime may not apply to appeals. The learned authors of Singapore Civil Procedure 2017 had relied on several Canadian case authorities for this proposition.

Counsel for the Defendant submitted that on closer review of the Canadian case authorities, as well as the differences between the O 22A regime and the regime in Canada, “[w]hile it may be the case that the costs consequences of Order 22[A] Rule 9 may not apply to appeals, it does not mean that the offer to settle regime cannot apply to appeals”.² Put another way, “an offer to settle regime does apply at the appellate level. It is only that costs consequences will remain at the discretion of the Honourable Court”.³ Counsel for the Defendant submitted that this position would also be in line with the policy of the O 22A regime – to “spur the parties to bring litigation to an expeditious end without judgment, and thus to save costs and judicial time” (citing Singapore Airlines Ltd v Tan Shwu Leng [2001] 3 SLR(R) 43 at [37]).

At the hearing, counsel for the Plaintiff clarified that he was not taking issue with the applicability of the O 22A regime to appeals, and confirmed that the hearing should proceed directly to the main issue, to which I now turn.

Main issue: Whether the High Court has jurisdiction to hear OS 430

The main issue was whether the High Court has the necessary jurisdiction to hear and determine OS 430, given that OS 430 concerns offers to settle relating to the Appeals.⁴

This appeared to be a novel issue, and neither counsel could locate case authorities that were directly on point. They chose instead to proceed largely on arguments from first principles.

Counsel for the Defendant relied on the same arguments to establish that OS 430 should be struck out under both O 18 r 19(1)(b) and (d) of the Rules of Court.⁵ Her arguments may be summarised as follows: First, the discretion involved in enforcing the offers to settle under the O 22A regime is exercisable only by the Court of Appeal because the offers to settle in question relate to matters that are on appeal. To elaborate, it is established under the law that even if an offer to settle has been validly accepted by the offeree, it would not automatically be enforced by the court – the court retains a discretion on whether to enforce the offer to settle (Ong & Ong Pte Ltd v Fairview Developments Pte Ltd [2015] 2 SLR 470 (“Ong & Ong”) at [19(e)]). This is because in enforcing an accepted offer to settle, regard should be had “not only to ordinary contractual principles but also to general principles of fairness and justice” (Ong &...