Wee Yue Chew v Su Sh-Hsyu

• Jurisdiction: Singapore
• Judgment Date: 04 January 2007
• Date: 04 January 2007
• Docket Number: Suit No 665 of 2004 (Summons No 3286 of 2006)
• Court: High Court (Singapore)

Wee Yue Chew

Plaintiff

and

Su Sh-Hsyu

Defendant

[2006] SGHC 244

Belinda Ang Saw Ean J

Suit No 665 of 2004 (Summons No 3286 of 2006)

High Court

Civil Procedure–Judgments and orders–Application by defendant to set aside judgment due to absence of defendant at trial–Whether sufficient evidence of explanation for defendant's non-attendance existing–Whether such evidence providing sufficient explanation for absence if true–Principles governing exercise of court's discretion to set aside judgment–O 35 r 2 (1) Rules of Court (Cap 322, R 5, 2006 Rev Ed)

The defendant (“Su”) failed to attend the trial beginning on 6 July 2006 but was represented by her counsel (“Mr Foo”) who sought an adjournment. The plaintiff (“Wee”) successfully resisted the application for adjournment. The trial proceeded and judgment was entered against Su with interest and costs. Su applied to set aside the judgment under O 35 r 2 (1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (ie on the basis of absence of a party at trial). The issues were whether there was sufficient evidence of an explanation for the defendant's non-attendance at trial and whether such evidence would have provided a sufficient explanation if it were true.

Su argued that her absence had not been deliberate but due to her foolishness and mistake. Su offered three reasons for her absence. First, she maintained that she had to attend an urgent and last-minute business meeting in New York from 5 to 8 July 2006. Second, she clarified that it had been her witnesses who had to remain in China during the trial dates in order to attend to an urgent business matter there which had also occurred at the last minute. Finally, Su submitted that she had been unaware of the consequences of her failure to attend. She went on to state that she had been told by one of her witnesses (“Hsieh”) that she was not required to attend the trial.

In this regard, Su contended that the overarching consideration that the court should consider in the exercise of its discretion to set aside a judgment obtained in the absence of a party at trial was the demands of justice and so long as there was a defence to the action on the merits (ie a defence with a real prospect of success and which carried some degree of conviction), the court should set aside the judgment even though the defendant's absence was not accidental or due to a mistake. Accordingly, whether or not Su was able to provide a satisfactory explanation for why she did not turn up at the trial was an important factor but not necessarily decisive.

On the other hand, Wee argued that in a setting-aside application under O 35 r 2 (1), Su had to satisfy the threshold test which was to give a credible explanation for her absence at the trial, failing which the application would be dismissed without further consideration.

Held, dismissing the defendant's application:

(1) A good explanation for the absence was first and foremost required. The reason given for non-attendance was a predominant consideration in deciding whether to set aside the judgment obtained in the absence of the party at trial under O 35 r 2 (1): at [25].

(2) It was not possible, or wise, to give a definitive list of circumstances justifying absence. Much depended on the circumstances of the case. The validity of the reason proffered would be judged in the context of the factual matrix presented in each particular case. A typical situation was where the defendant asserted that he had no knowledge of the trial date or was mistaken as to it. Instances of a genuine mistake or accidental omissions had been accepted as valid excuses as each fell short of being deliberate in intent: at [23].

(3) After the court was satisfied with the explanation for absence at trial, it would continue to hear and balance the competing factors. Besides considering the interests of the parties such as: (a) the prejudice which the plaintiff would suffer if the judgment was set aside; (b) the prejudice which the defendant would suffer if judgment was not set aside; and (c) the interests of justice, the court would also have regard to the objectives set out in O 34A of the Rules of Court (which was the just, expeditious and economical disposal of proceedings) and the public interest element of finality in litigation. As between the parties, the notion of justice also comprised a procedural component, which had to be complied with: at [22].

(4) The decision not to attend trial was deliberate. Su was clearly notified of the trial date and had deliberately chosen to absent herself. It was noteworthy that Hsieh, who was giving instructions on Su's behalf to Mr Foo, had not come forward to explain the apparent discrepancies in the explanations for Su's absence from trial. Even on Su's case that she did not turn up because she had to attend an important meeting in New York (it was pointed out that there was no evidence that Su actually went to the meeting), it was plain that Su deliberately chose not to attend the trial. Prioritising the meeting above the trial which Su had ample notice of was not a good reason for Su's non-attendance. There was clearly no mistake to speak of. Contrary to Su's claim that she was under the impression that her lawyer could take care of her defence, there was little Mr Foo could have done to protect her interests if he was not given further instructions that would have enabled him to cross-examine Wee on his affidavit of evidence-in-chief. Given the contradictory evidence before the court, there was insufficient evidence of an explanation for the defendant's non-attendance. That factor weighed heavily against the exercise of discretion to set aside the judgment: at [26] to [28].

(5) Having come to the conclusion that there was insufficient evidence of an explanation for the defendant's non-attendance, the application was accordingly dismissed. It was therefore not necessary to weigh-up the competing factors raised by Su: at [29].

[Observation: Su was represented by Mr Foo when Wee obtained judgment on 6 July 2006. However, no distinction was raised in argument that Mr Foo must be taken to have appeared for the defendant for the purpose of the trial and for the purpose of O 35 r 2 (1) and, as such, the defendant could not apply to set aside the judgment of 6 July 2006 under O 35 r 2 (1) and that her recourse was to appeal against the refusal of the adjournment. As this procedural point was not raised it did not have to be considered. It was common ground that Su could invoke O 35 r 2 (1) even though Su was legally represented at the trial: at [19].]

Grimshaw v Dunbar [1953] 1 QB 408 (folld)

Hayman v Rowlands [1957] 1 WLR 317 (refd)

Ong Cher Keong v Goh Chin Soon Ricky [2001] 1 SLR (R) 213; [2001] 2 SLR 94 (distd)

PJB Capital Sdn Bhd v Dato' Peh Teck Quee [2004] 1 CLJ 608 (refd)

Shahtex Limited v N Aboobaker [1997] EWCA Civ 1141 (refd)

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 v Philip Williams [1999] EWCA Civ 1276 (folld)

Rules of Court (Cap 322,R 5, 2006 Rev Ed)O 35r 2 (1) (consd);O 34A,O 35r 1 (1), O 64r 5 (1)

Lawrence Lee and Tisha Yeo (Aptus Law Corporation) for the plaintiff

Tay Wee Chong and Low Wei Ling (Hee Theng Fong & Co) for the defendant.

Belinda Ang Saw Ean J

1 This action was due to be tried on 6 July 2006. The defendant, Su Sh-Hsyu (“Su”), did not attend the trial but was represented by her counsel, Mr Foo Say Tun, who was instructed to apply for an adjournment on the morning of the trial. The plaintiff, Wee Yue Chew (“Wee”), through his counsel, Ms Lisa Theng, assisted by Ms Tisha Yeo, successfully resisted the application. The trial proceeded in the normal way and judgment was entered against Su with interest and costs.

2 On 20 July 2006, Su applied to set aside the judgment of 6 July 2006 under O 35 r 2 (1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed). Her application was dismissed with costs fixed at $2,000 on 28 August 2006. Su has now appealed against my decision.

Application to adjourn the trial

3 It is necessary to first recount the reasons that were given on 6 July 2006 in support of Su's oral application for an adjournment. As stated, the trial, which was fixed for two days, was to have begun on 6 July 2006 at 10.00am. Mr Foo was informed on 5 July 2006 that Su and her two witnesses, Hsieh Hsi Mou (“Hsieh”) and Shi Bi Xian (“Shi”), were not going to be in Singapore for the trial. The ostensible reason given in Mr Foo's letter of 5 July 2006 to the Registrar (“the 5 July letter”) was that Su and Hsieh were engaged in last-minute meetings relating to an educational college in Shanghai, the Shanghai Normal University Science Technology & Management College (“SHNU STMC”). This was because SHNU STMC had received an unexpected number of applications for admission. Similarly, Shi, who was charged with the recruitment drive for the same college, had to meet with local educational officers, students and parents in various provinces in China due to the unanticipated influx of applications during this period. Mr Foo had attached to his letter several documents. The first document was a hotel reservation voucher for three nights, beginning 5 July 2006, for Shi and one Yang Yen Huang. There was no hotel reservation for Hsieh and Su. The two other documents, which were supposedly confirmation slips for the air tickets booked for Shi and Hsieh to depart Shanghai on 5 July 2006 for Singapore, could not be relied upon at the hearing as they were written in Chinese and had not been translated into the English language. Nonetheless, Mr Foo had indicated in his letter that air tickets were booked for Shi and Hsieh to depart Shanghai for Singapore on 5...