UTOC Engineering Pte Ltd v ASK Singapore Pte Ltd

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 16 August 2016
• Neutral Citation: [2016] SGHC 162
• Date: 16 August 2016
• Docket Number: Suit No 449 of 2013 (Summons No 3755 of 2016)
• Published date: 07 September 2016
• Plaintiff Counsel: Eusuff Ali s/o N B M Mohamed Kassim (Tan Rajah & Cheah)
• Defendant Counsel: Lee Hwee Khiam Anthony and Cheng Geok Lin Angelyn (Bih Li & Lee LLP)
• Court: High Court (Singapore)
• Hearing Date: 10 August 2016
• Subject Matter: Civil procedure,Costs,Principles,Stay of proceedings

Lee Seiu Kin J:

On 22 July 2016, I dismissed the defendant’s application for a stay of assessment of damages pending the defendant’s appeal to the Court of Appeal against my decision on liability. On 1 August 2016, the defendant filed the present summons for leave to appeal against my decision of 22 July 2016.

On 3 August 2016, counsel for the plaintiff, Mr Eusuff Ali s/o N B M Mohamed Kassim, wrote to counsel for the defendant, Mr Lee Hwee Khiam Anthony, to state that it was “incorrect” to apply for leave to appeal. Mr Lee replied on 4 August 2016 to register his disagreement on this point, whereupon Mr Eusuff replied on the same day, citing O 57 rr 15(1) and 16(4) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”).

At the hearing on 10 August 2016, Mr Eusuff raised a preliminary objection to the defendant’s application for leave to appeal. He contended that there was no basis for such an application as the defendant could apply directly to the Court of Appeal for the stay that was refused by me on 22 July 2016. This is because the Court of Appeal has concurrent jurisdiction pursuant to O 57 r 15(1) of the ROC, which provides as follows:

15.—(1) Except so far as the Court below or the Court of Appeal may otherwise direct — (a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the Court below; and (b) no intermediate act or proceeding shall be invalidated by an appeal.

Further, O 57 r 16(4) of the ROC specifically provides that where both courts have concurrent jurisdiction, the application must first be made to the court below (unless there are special circumstances). In the present case, I had dismissed the defendant’s application for stay. Therefore, the defendant was not precluded from making the same application to the Court of Appeal by invoking its concurrent jurisdiction.

Mr Eusuff referred to Cropper v Smith (1883) 24 Ch D 305 (“Cropper”), where the English Court of Appeal considered the English equivalent of O 57 r 15(1) of the ROC. Brett MR held (at 308) that “[b]y that rule it is assumed that the Court of Appeal has … an independent jurisdiction” to order a stay. Cotton LJ held (at 313) that the rule “gives co-ordinate jurisdiction” to both the court below and the appellate court. The Court of Appeal in Au Wai Pang v Attorney-General and another matter [2014] 3 SLR 357 (“Au Wai Pang”) considered Cropper (at [76]) and opined (at [77]) that such jurisdiction was conferred by s 19 of the UK Supreme Court of Judicature Act 1873 (c 66) (UK). In Naseer Ahmad Akhtar v Suresh Agarwal and another [2015] 5 SLR 1032, Hoo Sheau Peng JC affirmed this position (at [108]) and referred to the decision of the Court of Appeal in Au Wai Pang. I should add that it seemed to me that jurisdiction to grant leave is vested in both the High Court and the Court of Appeal pursuant to s 34(2) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”), the opening words of which state “[e]xcept with the leave of the High Court or the Court of Appeal, no appeal shall be brought to the Court of Appeal in any of the following cases”. Therefore, the concurrent jurisdiction of both courts is derived from s 34(2)...