Vineshwaran S/O Sambath v Chandrashegaran S/O Rajagopal & Anor

JudgeSandra Looi
Judgment Date11 May 2016
Neutral Citation[2016] SGDC 114
Citation[2016] SGDC 114
CourtDistrict Court (Singapore)
Published date19 July 2016
Docket NumberDistrict Court Suit No 2356 of 2014, DC SUM No 808 of 2016
Plaintiff CounselRenuka D/O Karuppan Chettiar (Karuppan Chettiar & Partners)
Defendant CounselMahendra Prasad Rai (Cooma & Rai)
Subject MatterCivil Procedure,Judgment entered in default of appearance,Setting Aside,Parties,Joinder Insurance,Motor Vehicle Insurance
Hearing Date28 April 2016
Deputy Registrar Sandra Looi: Brief Facts

On 5 August 2011, the Plaintiff and her son (a minor) were passengers in a motor van driven by the 1st Defendant when it collided with a motor taxi driven by the 2nd Defendant. The Plaintiff suffered personal injuries and brought a claim against both Defendants for damages. The Plaintiff also claimed on behalf of her son as his litigation representative against the same Defendants for personal injuries suffered in the accident in a separate suit in MC14538/2014. The writ of summons was served personally on both Defendants, and subsequently, interlocutory judgment was entered against both Defendants in default of their appearance on 8 October 2014. The insurer of the 1st Defendant, who disclaimed liability under the policy, was subsequently granted leave to intervene in the action on 9 February 2015, without prejudice to their right of recovery against the 1st Defendant and for proceedings to be amended by adding the insurer as intervener accordingly. The insurer then applied to set aside the default interlocutory judgment under Order 13, r.8 of our Rules of Court.

Preliminary Issue

At the pre-trial conference of the summons to set aside the interlocutory judgment, the Plaintiff raised a preliminary objection that the intervener had no locus standi to set aside the default interlocutory judgment. The Deputy Registrar conducting the pre-trial conference directed that the preliminary issue defined as follows be first determined before the hearing of the summons – whether the intervener on record as insurer has locus standi to apply to set aside an interlocutory judgment that has been entered against the unrepresented insured.

The preliminary issue will thus be determined in the above factual context.

Case Authorities

Both counsels for the Plaintiff and the intervener informed the court that no local authority directly on point was available.

Counsel for the intervener referred to several case authorities spanning several common law jurisdictions, one of which was the English case of Jacques v Harrison (1883-1884) LR 12 QBD 165, CA. In that case, the equitable mortgagees who were strangers to the action, applied in their name against the Plaintiff to set aside the default judgment at a very late stage of proceedings. On the materials before that court which showed that there was a defence, Bowen L.J. was of the view that the applicants undoubtedly would be entitled, even at that late stage, to set aside the default judgment and to defend the action, on reasonable terms, “provided proper steps had been taken for that purpose, or even if any technical omission of which he has been guilty can be cured”1. Bowen L.J. laid down the principle that there are only two modes open to a stranger to an action who is injuriously affected by any default judgment against the defendant to set the judgment aside –

“There are, so far as we can see, only two modes open by which a stranger to an action, who is injuriously affected through any judgment suffered by a defendant by default, can set that judgment aside; and these two modes are amply sufficient to protect any such stranger in all cases in all his rights. He may, in the first place, obtain the defendant's leave to use the defendant's name, if the defendant has not already bound himself to allow such use of his name to be made; and he may thereupon, in the defendant's name, apply to have the judgment set aside on such terms as the judge may think reasonable or just. Or he may, if he is not entitled without further proceedings to use the defendant's name, take out a summons in his own name at chambers to be served on both the defendant and plaintiff, asking leave to have the judgment set aside, and to be at liberty either to defend the action for the defendant on such terms of indemnifying the defendant as the judge may consider right, or, at all events, to be at liberty to intervene in the action in the manner pointed out by the Judicature Act, 1873, s. 24, subs. 5.

By one or other of these two modes all that justice requires in any case can be done. But it is of the essence of the intervention of the third person, if he adopts the latter course, that the defendant should be made a party to the application. This is not a mere form, but an essential requirement of justice. The defendant has thought it more consistent with his own interest to submit at once to the plaintiff's claim instead of contesting it further. If at the instance of a stranger to the action the litigation is sought to be revived, the defendant has a right, in the first place, to dispute the title of the applicant to interfere. He has no opportunity of doing so unless he is made a party to the summons. In the second place, he has a right to be heard upon the question whether, if a litigation is to be prolonged against himself in invitum which he desired to have closed by his submission, he should not be indemnified against any risks or costs to which he may be otherwise exposed by its prolongation. Until the applicant has made the defendant a party to the application by service upon him of the summons, the applicant remains a mere stranger to the action.

He was, no doubt, misled into this irregularity by the conduct of the defendant, who, in a previous proceeding before Bacon, V.C., had intimated that he did not intend to trouble himself further in the matter. But the defendant's language in a Chancery action did not dispense with the necessity of making him a party to any application made in the action in the Queen's Bench Division in which he was the defendant on the record. He had a right to change his mind. He had a right, moreover, to be heard as to being indemnified in his own action. On the hearing of the summons, to which he was not a party, Mr. Justice Field might no doubt have adjourned the summons for his attendance, or adopted some means of protecting him in his absence. It does not appear that the learned judge was asked to do so, and as the respondent only could obtain a locus standi by means of service on the defendant or notice to him of this application, and as such service or notice on the very face of the summons had not been given, Mr. Justice Field, in conformity with the practice and with law, dismissed the summons on the ground that the respondent was a mere stranger as yet to the action.

Against Mr. Justice Field's decision the respondent appealed to the Divisional Court without curing the blot manifest on the very face of that application.

The Divisional Court decided in his favour, reversing the judgment of Field, J., on the ground that Order XXVII., r. 15, gave the respondent a locus standi. Strictly speaking we should have been disposed to think that this decision was incorrect as a matter of practice and a misconception of the effect of the rule, which was not designed to give a locus standi to persons who had none, but to enable judgments by default to be set aside on terms by those who had or who could acquire a locus standi. Probably no substantial injustice was done. It is all but certain that the defendant does not care to interfere. But this is a surmise only, and, as a matter of practice, it is difficult in technical strictness to justify an order made at the instance of a stranger that affects the possible rights of a defendant on the record who has not been made a...

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