Vallipuram Gireesa Venkit Eswaran v Scanply International Wood Product (S) Pte Ltd (Kim Yew Trading Co, Third Party)

JudgeJudith Prakash J
Judgment Date02 June 1995
Neutral Citation[1995] SGHC 142
Citation[1995] SGHC 142
Defendant CounselTan May Tee (Wendy Wong Koh & Suparto),Prabhakaran Nair (Ong Tan Nair & Kwek)
Published date19 September 2003
Date02 June 1995
Docket NumberSuit No 2222 of 1989 (Summons in Chamber No 1413 of 1995)
CourtHigh Court (Singapore)
Subject MatterJudgments and orders,Setting aside,Civil Procedure,Whether application made bona fide,Whether there were credible reasons for not appearing at trial and for not applying to set aside the judgment earlier,Relevant principles,O 35 rr 1(2) & 2 Rules of the Supreme Court 1990,Application by third party to set aside interlocutory judgment made two years late

This matter had its foundation in a purchase of Malaysian timber by the defendants from the third party. The defendants on-sold the timber to the plaintiff who, on delivery, found it to be defective. The plaintiff consequently started the main action against the defendants for damages. The defendants in turn took out third party proceedings. In circumstances that will be detailed later, the plaintiff obtained judgment against the defendants and the defendants in turn obtained, first, an interlocutory judgment and, thereafter, a final judgment against the third party. The matter came before me on an application by the third party to set aside both the interlocutory and the final judgments.

Background

The third party is a partnership carrying on business in Kelantan, West Malaysia. In December 1988, acting through their Malaysian agents, the defendants bought a consignment of red meranti timber from the third party. The timber was delivered to the agents in Kuantan and shortly thereafter was shipped to Dubai in fulfilment of a contract made between the defendants and the plaintiff. In March 1989, the defendants wrote to the third party informing them that the plaintiff had raised a claim against the defendants alleging that the timber was of poor quality. The defendants were not able to settle the plaintiff`s claim and, in December 1989, the plaintiff commenced the main action against the defendants for damages.

On 31 July 1990, the defendants obtained leave to issue and serve a third party notice on the third party.
This notice was duly served out of the jurisdiction and the third party entered an unconditional appearance in the third party proceedings on 18 September 1990 through its then solicitors, M/s Choo & Joethy. Proceedings then continued in the normal way: pleadings were filed by both parties in the third party action, there were two pre-trial conferences attended by solicitors for all three parties and each of the parties filed their affidavits verifying lists of documents. On 10 May 1993, both the main action and the third party proceedings came on for trial in the High Court before Kan Ting Chiu JC. The plaintiff, the defendants and their respective counsel were present. Mr Joethy, counsel for the third party, was also present, but none of the partners of the third party itself appeared.

Before the trial proper commenced, the court dealt with a motion moved by Mr Joethy that the claim of the defendants against the third party be stayed or dismissed on the basis that the contract between them was governed by Malaysian law and that the more natural and appropriate forum for the trial of the dispute between the defendants and the third party was Malaysia.
After arguments from both parties, the court dismissed the motion.

The trial then started and evidence was recorded.
The first witness was a surveyor who gave evidence on behalf of the plaintiff. He was cross-examined by Mr Joethy on behalf of the third party. On the second day of the trial, Mr Joethy informed the court that his clients were not in court and that he had not been able to get instructions or communicate with them. The matter was adjourned to the next day for Mr Joethy to clarify his position. On the third day of the trial, the third party was still absent. Further evidence was recorded by the judge. At 3.25pm that day, Mr Joethy informed the court that he had not been able to reach his clients and that the last instructions he had received from them were given on 5 May 1993 to the effect that the third party would not be attending court. Mr Joethy then tendered the letter from the third party to this effect. Mr Joethy asked for permission to be discharged from the case as his position was untenable. His application was granted. The trial then proceeded and interlocutory judgment was entered that day against the defendants in the main action and against the third party in the third party proceedings.

On 5 April 1994, the assistant registrar carried out an assessment of the damages sustained by the plaintiff.
Notice of the date of the assessment was sent to the third party by the defendants` solicitors but the third party failed to appear at the hearing. Pursuant to the orders given at the conclusion of the assessment hearing, final judgment was entered against the third party on 12 April 1994. In October 1994, a notice to register the judgment in the Malaysian courts, taken out on behalf of the defendants, was served on the third party. This application was fixed for hearing on 9 January 1995 in the High Court of Malaysia in Kota Baru, Kelantan. On 7 January 1995, the Kota Baru court granted the third party an adjournment of the registration proceedings to 21 March 1995 because the third party informed the court that it wanted to lodge a notice of appeal in this court against the final judgment. On 9 March 1995, the third party filed the present application to set aside the interlocutory and final judgments and, as a consequence, the Malaysian hearing on the 21 March 1995 was adjourned pending the outcome of the hearing in Singapore.

The application

Before me, Ms Tan, counsel for the third party, supported the application on two grounds. Her first ground was that the final judgment was for an excessive amount and therefore bad or irregular and her second was that the interlocutory judgment was a default judgment which should be set aside as the third party had a defence to the claim on its merits.

(i) Was the final judgment irregular?

Ms Tan`s submission was based on the established legal principle that a judgment entered for more than the amount actually due at the time the judgment is entered is bad and will be set...

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4 cases
  • Su Sh-Hsyu v Wee Yue Chew
    • Singapore
    • Court of Appeal (Singapore)
    • 25 Junio 2007
    ...... been authoritatively established in Cheong Kim Hock v Lin Securities (Pte) [1992] 2 SLR 349 ...Similarly, the third condition has also been satisfied as the HSA ...) prove fraud on the part of the opposing party. This issue merited serious consideration as ... and the local courts, for example, in Vallipuram Gireesa Venkit Eswaran v Scanply International od Product (S) Pte Ltd [1995] 3   SLR 150. Different ... Venkit Eswaran v Scanply International Wood Product (S) Pte Ltd ([41] supra ). In that ......
  • Ching Chew Weng Paul, deceased v Ching Pui Sim
    • Singapore
    • High Court (Singapore)
    • 28 Marzo 2011
    ...[2006] 4 SLR (R) 884; [2006] 4 SLR 884 (refd) Vallipuram Gireesa Venkit Eswaran v Scanply International Wood Product (S) Pte Ltd [1995] 2 SLR (R) 507; [1995] 3 SLR 150 (refd) Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 (refd) Rules of Court (Cap 322,R 5, 2006 Rev Ed) O 35r 2 (consd) ;O 24r......
  • Wee Yue Chew v Su Sh-Hsyu
    • Singapore
    • High Court (Singapore)
    • 4 Enero 2007
    ...Shocked v Goldschmidt [1998] 1 All ER 372 (folld) Vallipuram Gireesa Venkit Eswaran v Scanply International Wood Product (S) Pte Ltd [1995] 2 SLR (R) 507; [1995] 3 SLR 150 (refd) Wong Keng Leong Rayney v Law Society of Singapore [2006] 4 SLR (R) 934; [2006] 4 SLR 934 (refd) Yanagos Nicolaou......
  • U Myo Nyunt @ Michael Nyunt v First Property Holdings Pte Ltd
    • Singapore
    • Court of Appeal (Singapore)
    • 2 Agosto 2021
    ...To illustrate, in Vallipuram Gireesa Venkit Eswaran v Scanply International Wood Product (S) Ltd (Kim Yew Trading Co, third party) [1995] 2 SLR(R) 507, judgment was entered and damages assessed against a third party who had failed to attend trial. It was only when the plaintiff sought to re......
1 books & journal articles
  • A REVIEW OF DEVELOPMENTS IN SELECTED AREAS OF CIVIL PROCEDURE1
    • Singapore
    • Singapore Academy of Law Journal No. 1996, December 1996
    • 1 Diciembre 1996
    ...v Sterling Offices[1972] Ch 553, at p 565; Gamlen Chemical Co (UK) Ltd v Rochem Ltd (unreported), 7 December 1979, to this effect. 139 [1995] 3 SLR 150. 140 His lawyer applied for, and was granted, a discharge on the third day. 141 Which had become final after the damages had been assessed.......

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