United Engineers (Singapore) Pte Ltd v Lee Lip Hiong and Others

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 31 August 2004
• Neutral Citation: [2004] SGHC 190
• Docket Number: Suit No 13 of 2004 (Registrar's Appeals Nos 202 and 203 of 2004)
• Date: 31 August 2004
• Published date: 02 September 2004
• Year: 2004
• Plaintiff Counsel: Andre Yeap SC and Adrian Wong (Rajah and Tann)
• Citation: [2004] SGHC 190
• Defendant Counsel: Foo Yuk Lin (Foo Chia Partnership),H T Sam (H T Sam and Co)
• Court: High Court (Singapore)
• Subject Matter: Amendment,Summary judgment,Whether time limit could be extended by court or by consent of parties,Pleadings,Order 18 r 20(1) Rules of Court (Cap 322, R 5, 2004 Rev Ed),Whether time bar for taking out of summary judgment application absolute,Order 3 r 4(3), O 14 r 14, O 92 r 4 Rules of Court (Cap 322, R 5, 2004 Rev Ed),Civil Procedure,Whether amendment of pleadings postponed deemed closure of pleadings thereby extending time limit for summary judgment application

31 August 2004

Tay Yong Kwang J:

The legal issues

1 Order 14 r 14 of the Rules of Court (Cap 322, R5, 2004 Rev Ed) states:

Time limit for summary judgment applications (O. 14, r. 14)

14. No summons under this Order shall be filed more than 14 days after the pleadings in the action are deemed to be closed.

These appeals raise the following two issues regarding this rule:

(a) can the time limit be extended by the court?

(b) when pleadings are amended, do they postpone the deemed closure of pleadings, thereby extending the time limit in O 14 r 14 automatically?

The facts

2 The plaintiff is in the business of general construction work. The first defendant was its former engineering manager whose duties included negotiating and concluding contracts between the plaintiff and its sub-contractors. Through the first defendant, the plaintiff awarded certain contracts to the second and the third defendants.

3 On 6 January 2004, the plaintiff commenced this action against the defendants to recover secret commissions allegedly paid to the first defendant by the second defendant on numerous occasions over more than a decade, in order to secure contracts for himself and, subsequently, the third defendant. The third defendant filed a counterclaim against the plaintiff for payment for works done on the contracts in question.

4 Pursuant to O 18 r 20, the pleadings in this action were deemed to be closed on 9 March 2004. The last day for taking out a summons for summary judgment under O 14 was, therefore, 23 March 2004. On that day, the plaintiff took out an application to extend time to file and serve a summons under O 14 r 1 for summary judgment on its claim against the defendants. A couple of days later, the third defendant also applied for an extension of time to file and serve its summons under O 14 r 5 for summary judgment on its counterclaim against the plaintiff.

5 The grounds put forward by the plaintiff for the said extension of time were that the plaintiff had to make enquiries with the Attorney-General’s Chambers and had to ask for further evidence relating to the conviction of the first defendant, upon his plea of guilt in August 2003, by a District Court. The first defendant had been sentenced to 18 months’ imprisonment. As at 23 March 2004, the deputy public prosecutor in charge of this matter was still reviewing the papers. Since the plaintiff required the further evidence requested for its summary judgment application, it asked for time to be extended until after the Attorney-General’s Chambers have reverted on its request. The plaintiff said it also needed time to investigate the documents relating to the various construction projects.

6 The grounds relied on by the third defendant for the said extension of time, were that the case involved voluminous documents and its solicitors were unable to obtain instructions from a director (the second defendant) who had just returned from an overseas trip.

7 Assistant Registrar Joyce Low (“the Assistant Registrar”) heard the applications for extension of time and reserved her decision thereon.

8 In the meantime, on 24 May 2004, the third defendant applied to amend its Counterclaim by adding one cent to the amount claimed on the basis that there was a typographical error. Leave to amend was granted on 7 June 2004 with the consequential order that the plaintiff be allowed to file an amended Reply and Defence to Counterclaim by 21 June 2004.

9 On 8 June 2004, the plaintiff took out an application for summary judgment under O 14 r 1 and/or for judgment on admission of facts under O 27 r 3 against the defendants. On 12 June 2004, the third defendant applied for summary judgment under O 14 r 5 on its counterclaim against the plaintiff. Both parties took the view that the amendments to the pleadings re-opened the pleadings and thus revived their right to file O 14 applications. They therefore did not wait for the outcome of their applications for extension of time.

10 The first defendant disagreed with the view of the plaintiff and the third defendant. On 18 June 2004, he applied to set aside their applications under O 14 on the ground that they were made in contravention of O 14 r 14 and were an abuse of process of court as the earlier applications for extension of time had not been determined yet. The first defendant submitted that he had the standing to apply to set aside the third defendant’s O 14 application against the plaintiff as he had been served with that application.

11 On 29 June 2004, the Assistant Registrar set aside the plaintiff’s and the third defendant’s O 14 applications but allowed the plaintiff to proceed with its prayer for judgment under O 27 r 3. She made no order on the applications for extension of time (the proper order should have been a dismissal of those applications). She fixed costs at $6,000 for all the applications dealt with by her, with such costs to be paid equally by the plaintiff and the third defendant to the first defendant.

12 On 13 July 2004, the plaintiff filed these two appeals against the Assistant Registrar’s decisions. The third defendant did not lodge any appeal.

13 I heard the appeals on 11 August 2004 and dismissed them. I ordered the plaintiff to pay the first defendant costs of $1,000 (as requested by the first defendant) for each of the two appeals. I also ordered the plaintiff to pay $200 to the third defendant as it was served with the notices of appeal.

The hearing before the Assistant Registrar

14 The plaintiff and the third defendant argued that the court had three sources of power to grant an extension of the time stipulated in O 14 r 14. They were s 18(2) read with para 7 of the First Schedule of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“SCJA”), O 3 r 4(1) of the Rules of Court and the inherent powers of the court. They submitted that an extension of time should be granted in the circumstances of this case.

15 The Assistant Registrar (in her grounds of decision at [2004] SGHC 153) noted that s 18(2) of the SCJA provides that the High Court shall have the powers set out in the abovementioned para 7 of the First Schedule which states:

Power to enlarge or abridge the time prescribed by any written law for doing any act or taking any proceeding, whether the application therefor is made before or after the expiration of the time prescribed, but this provision shall be without prejudice to any written law relating to limitation.

She reasoned (at [12]), however, that O 14 r 14 “is a written law relating to limitation” and “it functions as any other law relating to limitation does” and the court therefore did not have the power to extend time for the filing of an O 14 application outside the period of limitation prescribed by O 14 r 14.

16 Turning to O 3 r 4(1) of the Rules of Court, the Assistant Registrar held that since this was subsidiary legislation created pursuant to the SCJA to give effect to the power of the court to extend time under para 7 of the First Schedule, O 3 r 4(1) could not be relied on to extend time to file an O 14 application beyond a limitation period when the court had no such power to do so under the SCJA. In her view, the negative phraseology in O 14 r 14 did not come within the purview of O 3 r 4(1) which reads:

The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these Rules or by any judgment, order or direction, to do any act in any proceedings.

17 On the question of inherent jurisdiction, she held (at [22]) that:

[T]he general rule is that the court should not introduce its own notions of justice by the exercise of its inherent powers to contravene a clear, express provision of the Rules.

Even if the court could invoke its inherent powers to extend time here, she was of the view that the reasons put forward by the plaintiff and the third defendant were not compelling enough. She noted (at [24]):

O 14 r 14 reflects the fine balance arrived at by the Rules Committee between the need for certainty, timeliness and justice. It provides the much-needed certainty to the parties and the court, as to whether a matter is proceeding on the normal management or summary judgment track, as soon as the time bar lapses. At the same time, the Rules Committee has considered that it is sufficient to give parties 14 days after the deemed closure of pleadings to decide whether summary judgment is appropriate, in the interest of efficiency without any compromise on substantial justice.

18 She therefore concluded that the court did not possess express power to grant an extension of time to file and serve a summons under O 14. She was also of the opinion that the circumstances in this case did not warrant invoking the court’s inherent powers in favour of the plaintiff and the third defendant in their respective applications for an extension of time.

19 In a separate judgment relating to the first defendant’s application to strike out the O 14 applications (in [2004] SGHC 169), the Assistant Registrar dealt with the arguments on whether the amendments to the pleadings revived the right of the plaintiff and of the third defendant to take out O 14 applications. After analysing several case authorities, she was of the view that the amendments to the pleadings did not postpone the deemed closure of the pleadings. She held that O 18 r 20 referred to the original pleadings and not the amended ones.

20 She accepted that there could be a case for the exercise of the court’s inherent powers to allow the O 14 applications if the amendments to the pleadings changed the character of the litigation such that the summary judgment procedure became appropriate for the first time. However, as the amendment here pertained only to an increase of one cent in the third defendant’s counterclaim against the plaintiff, the nature of the litigation, whether in the main action or the counterclaim, was not affected at all....