Wellmix Organics (International) Pte Ltd v Lau Yu Man

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 21 March 2006
• Neutral Citation: [2006] SGCA 11
• Date: 21 March 2006
• Subject Matter: Whether initial order by judge denying application to set aside default judgment final order,Section 34(1)(a) Supreme Court of Judicature Act (Cap 332, 1999 Rev Ed),Whether appeal against such order precluded by s 34(1)(a) Supreme Court of Judicature Act,Civil Procedure,Interlocutory judgment entered following non-compliance with order to serve affidavit by deadline,Application to set aside default judgment successful after judge denying application hearing further arguments,Whether order setting aside default judgment unconditionally,Judgments and orders,Whether judge making initial order precluded from hearing further arguments
• Docket Number: Civil Appeal No 111 of 2005
• Published date: 21 March 2006
• Defendant Counsel: Irving Choh and Melvin Lum (Rajah & Tann)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Michael Por and Krishnasamy Siva Sambo (Tan Lee & Partners)

21 March 2006 Judgment reserved.

Chao Hick Tin JA (delivering the judgment of the court):

1 This is an application by the respondent in Civil Appeal No 111 of 2005, (“the appeal”) by way of motion, to strike out the notice of appeal filed by the appellant on the ground that under s 34(1)(a) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“the SCJA”) the decision of the judge is non-appealable.

The background

2 We shall first set out briefly the facts which led to the filing of the present motion. By way of Suit No 642 of 2001, the appellant claimed against the respondent, who, at all material times, was a director of the appellant, for breach of his duties as a director of the appellant, namely, to act diligently and bona fide in the interest of the appellant.

3 Matters came to a head in the action when the respondent failed to file the necessary affidavits of evidence-in-chief (“AEICs”) by 10 June 2005 as ordered by the senior assistant registrar. As a result, on 13 June 2005, the appellant applied by way of summons in chambers, Summons in Chambers No 2391 of 2005 (“SIC 2391/2005”), requiring the respondent to file its AEICs by a specified date, failing which the amended defence filed by the respondent in the action would be struck out “without further attendance or order”. On the day on which the parties were to attend before the assistant registrar in relation to SIC 2391/2005, counsel for the parties had a private discussion before appearing before the assistant registrar where they agreed to set the deadline of 21 June 2005 for the filing of AEICs. The orders which the assistant registrar made were, inter alia, as follows:

3. the [respondent] file and serve [its] Affidavits of Evidence-in-Chief by Tuesday, 21 June 2005, failing which Judgment will be entered in the matter for the [appellant].

4. the [appellant] file and serve [its] fourth Affidavit of Evidence-in-Chief by Tuesday, 21 June 2005.

4 While the respondent filed its two affidavits in question within time on 21 June 2005, it only served them on the appellant the next day. As a result, interlocutory judgment was entered in favour of the appellant, with damages to be assessed. Upon the respondent’s application to have the interlocutory judgment entered set aside, Assistant Registrar Yeong Zee Kin (“AR Yeong”) refused it on 29 June 2005. Upon the respondent’s appeal against AR Yeong’s decision, Andrew Phang Boon Leong JC (as he then was) (“the judge”), on 15 July 2005, dismissed the appeal. On 22 July 2005, the respondent wrote in to the judge to request for further arguments. The judge acceded to the request. On 23 September 2005, after hearing further arguments, the judge ordered that the interlocutory judgment be set aside unconditionally and that the action be restored for trial. Being dissatisfied with this decision of the judge, the appellant filed the present appeal on 21 October 2005, having complied with s 34(1)(c) of the SCJA by requesting for further arguments.

5 We ought to add that even before the appellant filed the notice of appeal, the respondent had notified the former that the former was precluded from appealing further in view of s 34(1)(a) of the SCJA which provides that no appeal may be brought to the Court of Appeal where a judge makes an order setting aside unconditionally a default judgment.

Issues raised by the motion

6 To resist the motion to strike out the notice of appeal, the appellant raises two main grounds for the consideration of this court. The first is whether the order made by the judge on 15 July 2005 was in the nature of an interlocutory or a final order. The effect of this argument is that if the order is in truth a final order, it follows that the judge would be precluded from hearing further arguments because by the time further arguments were requested on 22 July 2005, the order had been perfected. This would further mean that the order of 15 July 2005 would stand. The second issue is whether the order made on 23 September 2005 was an order setting aside unconditionally a default judgment. Either of these grounds will defeat the motion.

Final or interlocutory

7 We will examine the two issues in turn. The answer to the question as to whether an order is interlocutory or final is significant because it has implications as regards the nature of the rights of the parties to appeal further to the Court of Appeal. Section 34(1)(c) of the SCJA provides:

No appeal shall be brought to the Court of Appeal in any of the following cases:

(c) subject to any other provision in this section, where a Judge makes an interlocutory order in chambers unless the Judge has certified, on application within 7 days after the making of the order by any party for further argument in court, that he requires no further argument;

8 This provision in its present form, was introduced by an amendment Act in 1993. However, this is not to say that its contents were entirely new. Its equivalent previously was s 34(2) of the 1970 Rev Ed, and it read:

No appeal shall lie from an interlocutory order made by a Judge in chambers unless the Judge has certified, after application, within four days after the making of such order by any party for further argument in Court, that he requires no further argument, or unless leave is obtained from the Court of Appeal or from the Judge who heard the application.

9 It would be noted that there are significant differences between the two versions. Without going into a minute analysis of the two, what can be said broadly is that under the present s 34(1)(c), the possibility of a party appealing to the Court of Appeal against an interlocutory order is narrower. While under the previous provision, even though the party did not ask for further arguments within four days, he could still apply for leave to appeal to either the Judge or the Court of Appeal. Under the present provision this option is no longer available. Of course, under the present provision, the party has a longer period of time to request for further arguments, ie, seven days instead of four days.

10 The question of whether an order is truly interlocutory or final has troubled the courts here, as well as in England, for a long time. However, in England, they have resolved the problem by adopting a listing approach. What kind of applications or orders are to be treated as interlocutory are distinctly listed out. Singapore has not yet adopted that approach and still has to grapple with the problem from time to time.

11 Traditionally, two tests were propounded to determine the issue. The first is known as the “application” test, enunciated in Salaman v Warner [1891] 1 QB 734, where Fry LJ stated (at 736):

[A]n order is final only where it is made upon an application or other proceeding which must, whether such application or proceeding fail or succeed, determine the action. Conversely … an order is “interlocutory” where it cannot be affirmed that in either event the action will be determined.

12 The second is called the “order” test or “Bozson” test and was stated by Lord Alverstone CJ in Bozson v Altrincham Urban District Council [1903] 1 KB 547 (“Bozson”) to be this (at 548):

Does the judgment or order, as made, finally disposes of the rights of the parties? If it does, then … it ought to be treated as a final order; but if it does not, it is then … an interlocutory order.

13 In Ratnam v Cumarasamy [1962] MLJ 330, the Court of Appeal of the Federation of Malaya held that the Bozson test was the proper test to be applied to determine whether an order was to be held interlocutory or final. A later case where the Federal Court in Singapore adopted the same approach was Tee Than Song Construction Co Ltd v Kwong Kum Sun Glass Merchant [1965–1968] SLR 230.

14 Since then, the Bozson test was applied in many subsequent cases in Singapore, such as, Rank Xerox (Singapore) Pte Ltd v Ultra Marketing Pte Ltd [1992] 1 SLR 73 (“Rank Xerox”); Ling Kee Ling v Leow Leng Siong [1996] 2 SLR 438 and Aberdeen Asset Management Asia Ltd v Fraser & Neave Ltd [2001] 4 SLR 441 (“Aberdeen Asset”). This court recognised in Aberdeen Asset that whichever test was adopted would have its problems but as stated in that case, the Bozson test seems more logical. We do not see any compelling reason to depart from the approach. Obviously, the key words in the Bozson test are “finally”, “disposes” and “rights”. The word “rights” has been construed in Rank Xerox (at 76) to mean the substantive “rights” in the action or proceeding. A little more problematic are the other two words. The word “dispose” has a spectrum of meanings ranging from “to throw away”, “to make final arrangement”, “to deal” to “to determine the outcome”. It seems to us that in the context of the Bozson test, the word “dispose” must mean making a determination on the substantive rights and, as a matter of common sense, the court can only make a determination on the substantive rights after hearing the parties on the merits. Indeed, in Bozson, that was what happened – the first instance judge there had decided on the questions of liability and breach of contract. It was agreed that the rest of the case was to go before the official referee. Where an interlocutory judgment is entered into by default through failure to comply with either the Rules of Court (Cap 322, R 5, 2004 Rev Ed) (“the ROC”) or an order of court, there has been no determination on the merits.

15 As regards the word “finally”, its ordinary meaning is clear. It means either “the last” or “completely”. But in the context of the Bozson test, there could be some problems because of split hearing. Where, in an action, interlocutory judgment is entered against the defendant after hearing in chambers on the merits, does that order finally dispose the rights of the parties? I should add that an interlocutory judgment obtained after hearing in open court is expressly excluded from the scope of s 34(1)(c). There is much...