Wee Soon Kim Anthony v UBS AG and Others

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 17 January 2005
• Neutral Citation: [2005] SGCA 3
• Citation: [2005] SGCA 3
• Court: Court of Appeal (Singapore)
• Published date: 19 January 2005
• Plaintiff Counsel: Appellant in person
• Defendant Counsel: Hri Kumar and Gary Low (Drew and Napier LLC),Wilson Hue (Attorney-General's Chambers),Laurence Goh Eng Yau (Laurence Goh Eng Yau and Co)
• Subject Matter: Civil Procedure,Appeals,Time to file appeal,Request for further arguments refused,Whether time to file appeal ran from date of decision appealed against or from date judge certified no further argument required.,Extension of time,Extension of time to file appeal,Whether appellant should be granted extension of time.,Judgments and orders,Appeal dismissed,Meaning of "usual consequential orders".,Bona fide ambiguity as to court order,Whether court functus officio when clarifying order after hearing.,Striking out,Appeal,Appeal filed out of time,Respondent's case filed before application to strike out,Whether application to strike out should be allowed,Whether application to strike out estopped,Whether application to strike out made in bad faith.,Whether application to strike out should be filed with High Court or Court of Appeal.,Legal Profession,Admission,Ad hoc,Application to admit Queen's Counsel,Party seeking admission of Queen's Counsel substantive applicant.

17 January 2005

Woo Bih Li J (delivering the judgment of the court):

Introduction

1 The appellant, Anthony Wee Soon Kim, appealed against a decision of V K Rajah JC (as he then was) made on 30 June 2004. Mr Wee’s appeal was filed on 12 August 2004. The first respondent, UBS AG (“UBS”), then filed an application on 2 November 2004 to strike out Mr Wee’s appeal on the ground that it was filed out of time. After hearing submissions, we granted the application and struck out Mr Wee’s appeal. Before we set out our reasons, it is necessary to first set out the background facts.

Background

2 In Originating Motion No 22 of 2002, Mr Wee had applied to admit Gerald Godfrey, Queen’s Counsel (“Mr Godfrey”) to represent Mr Wee in Suit No 834 of 2001 (“Suit 834”) which was an action by Mr Wee against UBS. The application was dismissed on 15 October 2002 by Tay Yong Kwang JC (as he then was) who also ordered Mr Wee to pay the costs of the application fixed at $5,000 to UBS. The application had also been served on the Attorney-General and the Law Society of Singapore as required under s 21 of the Legal Profession Act (Cap 161, 2001 Rev Ed).

3 Mr Wee then appealed against Tay JC’s order. This was Civil Appeal No 114 of 2002 (“the First Appeal”). The First Appeal was heard by the Court of Appeal on 17 March 2003. It was filed by M/s Goh Aik Leng & Partners who were Mr Wee’s solicitors at the time his appeal was filed. However, at the hearing of the First Appeal, Mr Goh Aik Leng applied to discharge himself from acting for Mr Wee in Suit 834 and related matters including the First Appeal. Mr Goh informed the Court of Appeal that Mr Wee would argue the appeal “in person”. The Court of Appeal granted Mr Goh’s application (see Godfrey Gerald, Queen’s Counsel v UBS AG [2003] 2 SLR 306 at [10]). Mr Wee then proceeded to argue his appeal. At the conclusion of the hearing, the Court of Appeal dismissed his appeal with costs.

4 Following the dismissal of the First Appeal, UBS’s solicitors, M/s Drew & Napier, drafted the order of the Court of Appeal (“the CA order”) and proceeded to extract the CA order. They did not send the draft to Mr Wee as they believed that it was not necessary to do so under the Rules of Court (Cap 322, R 5, 1997 Rev Ed). The CA order was eventually extracted. Drew & Napier also proceeded to prepare a bill of costs (“the Bill”) for taxation. They say the Bill was served on Mr Wee on 21 April 2003 by leaving a copy of it in the mailbox of Mr Wee’s address at 81 Trevose Crescent Singapore 298093. Mr Wee did not attend the taxation hearing on 6 May 2003, which was the appointed date for taxation and a registrar proceeded to tax the Bill. On 6 May 2003, Mr Wee appointed M/s Chor Pee & Partners as his solicitors. The Notice of Appointment of Solicitor was served on Drew & Napier on 9 May 2003. On 13 May 2003, Drew & Napier sent Chor Pee & Partners a copy of the Registrar’s Certificate in respect of the Bill and demanded payment of the aggregate of the amounts reflected in the certificate. Neither Mr Wee nor Chor Pee & Partners alleged at the time that Mr Wee was not liable to pay the taxed costs of UBS. Although Mr Wee disputed that he had been served with a copy of the Bill, he did not dispute that a copy of the Registrar’s Certificate was sent to Chor Pee & Partners or that they and he had not objected to his personal liability for costs to UBS.

5 Instead, in the meantime, Mr Wee had received a letter from the Attorney-General’s Chambers (“AGC”) proposing a sum of $5,000 plus disbursements as being the party and party costs (between the Attorney-General and Mr Wee) ordered by the Court of Appeal in the First Appeal. Mr Wee said he received this letter on 22 April 2003. By a letter dated 2 May 2003, the AGC sent another letter to Mr Wee which enclosed a copy of the CA order.

6 Mr Wee replied by letter dated 23 May 2003 to raise three points. First, he said he did not recall having been sent a draft of the CA order before it was extracted. Second, he did not recall the Chief Justice having made the order in terms of para 3 of the extracted order. Third, he did not recall Mr Wilson Hue of the AGC having stood up before the Court of Appeal to ask for costs of the First Appeal.

7 It is appropriate at this juncture to set out the material part of the extracted order which states:

1. Messrs Goh Aik Leng & Partners be granted leave to discharge as Solicitors for the Appellant.

AND IT IS FURTHER ORDERED THAT:

2. The Appeal be dismissed with costs to the 1^st, 2^nd and 3^rd Respondents to be paid by Anthony Wee Soon Kim, the Plaintiff in Suit No 834 of 2001.

3. The sum of $10,000.00 (with interest, if any) deposited by the Appellant as security for the Respondents’ costs be paid out in three equal proportions to:-

(a) Drew & Napier LLC, Solicitors for the 1st Respondent;

(b) The Attorney-General, the 2nd Respondent; and

(c) The Law Society of Singapore, the 3rd Respondent,

to account of their costs.

8 As can be seen, there was no dispute in Mr Wee’s letter dated 23 May 2003 that he had been ordered personally to pay costs to UBS. Aside from the issue about his not having been sent a draft of the CA order before it was extracted, the two other issues Mr Wee was raising were that (a) there was no order that the $10,000 security deposit was to be paid to the three respondents in equal proportions and (b) he was not liable to pay costs to the Attorney-General.

9 However, as developments showed, Mr Wee was also taking the point that he was not liable personally for any costs as Mr Godfrey was the applicant and not Mr Wee. Consequently, clarification was sought from the Registrar as to whether the Court of Appeal did order Mr Wee to pay the costs of the First Appeal personally. After receiving correspondence from all the parties, the Registrar responded in a letter dated 6 May 2004 as follows:

I write with reference to the correspondence from all parties regarding the costs order for Civil Appeal No 114 of 2002 made at the hearing before the Court of Appeal on 17 March 2003.

2. I am directed to inform all parties that the order the Court made that day was that Mr Anthony Wee was to pay the costs of the appeal personally.

10 On 18 June 2004, Mr Wee applied to set aside the extracted order. In his supporting affidavit, he raised the following grounds:

(a) The draft of the CA order was not served on him or Mr Godfrey.[1]

(b) The Court of Appeal did not order him to pay costs personally. In so far as the Registrar’s letter dated 6 May 2004 had stated that the Registrar was directed to inform all parties that such an order had been made, Mr Wee’s position was that the Court of Appeal could not make that direction as it was functus officio.[2]

(c) Paragraph 3 of the extracted order was not pursuant to the order made by the Court of Appeal that day, ie 17 March 2003.[3]

11 Mr Wee’s application was heard and dismissed on 30 June 2004 by Rajah JC as we have mentioned. Mr Wee was represented by Mr Lim Chor Pee of Chor Pee & Partners at this hearing.

12 On 6 July 2004, Chor Pee & Partners wrote to request further arguments. On 7 July 2004, Mr Wee filed a Notice of Intention to Act in Person. On 20 July 2004, the Registrar replied to say that Rajah JC did not wish to hear further arguments. On 12 August 2004, Mr Wee filed his appeal No 68 of 2004 (“the Second Appeal”) against the decision of Rajah JC. Mr Wee subsequently filed the Record of Appeal, his Appellant’s Case and Core Bundle.

13 On 29 October 2004, the Respondent’s Case for UBS was filed by Drew & Napier. On 2 November 2004, UBS applied to strike out the Second Appeal on the ground that it was filed out of time.

14 On 24 November 2004, UBS’s application and the Second Appeal came up for hearing before us. After hearing arguments on UBS’s application as well as an oral application made by Mr Wee to extend the time for filing the Second Appeal, we decided that the Second Appeal was filed out of time and declined to extend the time to file the Second Appeal. Consequently, we ordered that the Second Appeal be struck out, with costs payable to all the three respondents to be taxed and the security deposit of $10,000 to be released to the respondents equally.

Reasons

15 Before we set out our reasons, we would mention that Mr Wee is a very senior member of the Bar although he is no longer in practice.

Was the Second Appeal filed out of time?

16 The first question before us was whether the Second Appeal was filed out of time. Drew & Napier argued that since Rajah JC’s order was made on 30 June 2004, the one-month deadline to file an appeal against this order ran from 30 June 2004 and not from 20 July 2004, which was the date when the Registrar replied to say that Rajah JC did not wish to hear further arguments.

17 Mr Wee’s position was that the one-month deadline did not run from 30 June 2004 but from 20 July 2004.

18 It is appropriate at this stage to set out O 57 r 4 of the Rules of Court (Cap 322, R 5, 2004 Rev Ed) which states:

Time for appealing (O 57, r 4)

4. Subject to this Rule, every notice of appeal must be filed and served under Rule 3(6) within one month —

(a) in the case of an appeal from an order in Chambers, from the date when the order was pronounced or when the appellant first had notice thereof;

(b) in the case of an appeal against the refusal of an application, from the date of the refusal; and

(c) in all other cases, from the date on which the judgment or order appealed against was pronounced.

19 Although Drew & Napier argued that O 57 r 4(a) applied, Mr Wee submitted that O 57 r 4(b) was the applicable provision. He said that this provision “expressly provides that the time for such an appeal starts upon the refusal of an application for further hearing”.[4]

20 It is our view that O 57 r 4(b) makes no reference to an application for further arguments or further hearing as Mr Wee put it. Order 57 r 4(b) refers to an appeal from the substantive decision to...