Wiltopps (Asia) Ltd v Drew & Napier (sued as a firm) and Another

• Judge: Lee Seiu Kin JC
• Judgment Date: 25 January 1999
• Neutral Citation: [1999] SGHC 22
• Citation: [1999] SGHC 22
• Defendant Counsel: Andrew Ong (Rajah & Tann)
• Published date: 19 September 2003
• Plaintiff Counsel: Ooi Oon Tat (Kenneth CP Tan & Liew)
• Date: 25 January 1999
• Docket Number: Suit No 1042 of 1993
• Court: High Court (Singapore)
• Subject Matter: Civil Procedure,Judgments and orders,Whether court has discretion to interfere with default judgment,Whether evidence of real contract between parties or of order made without obligation by parties,Grounds on which consent order can be set aside,Fresh proceedings to set aside unless order,Whether default judgment can be avoided if unless order set aside,Whether parties bound by unless order made with their consent,Unless order,Failing to comply with unless order

: In SIC 4078/98, the plaintiffs applied to set aside the default judgment of 26 May 1998 given by the assistant registrar. This application was dismissed on 21 September 1998 by Assistant Registrar Vivian Wong. The plaintiffs appealed against that decision in this appeal, RA 435/98. On 2 November 1998, after hearing counsel for the parties, I dismissed the appeal with costs. The plaintiffs have appealed against my decision and I now give my grounds of decision.

Background

This matter has its roots in Adm 68/81, in which the plaintiffs, in 1981, arrested the tug Sumi Maru 9001 for, inter alia, breach of towage contract and for return of certain payments (`the SM 9001 action`). The first defendants, M/s Drew & Napier, a firm of solicitors, entered an appearance for the tug-owners, the first defendants in the SM 9001 action, which was a Japanese entity. The High Court dismissed the action after trial. The plaintiffs appealed in CA 97/86 (`the SM 9001 appeal`). In November 1992 the Court of Appeal gave judgment for the plaintiffs. That judgment is reported in The Sumi Maru 9001 ; Wiltopps (Asia) Ltd v Owners of the Tug or Vessel `Sumi Maru 9001` & Anor [1993] 1 SLR 198 .

In the present action, the plaintiffs claim against the first defendants on the basis that the latter had, in breach of their warranty of authority and/or knowingly, recklessly and/or negligently in breach of duty to the plaintiffs, continued to act in the SM 9001 action and appeal having taken instructions from the second defendants, the Japan Ship Owners` Mutual Protection and Indemnity Association, a non-party to the proceedings. It was only in 1992 that the first defendants applied for leave to enter an appearance for the second defendants in the SM 9001 action and appeal. The tug-owners, for whom the first defendants entered appearance were undergoing liquidation/rehabilitation in or about 1985 and were eventually declared bankrupt in Japan. The plaintiffs claim that the first defendants had wrongfully purported to act for the tug-owners and obstructed the plaintiffs in the SM 9001 appeal. The matters in support of the plaintiffs` claim are particularised under para 6 of the statement of claim in the present action.

The plaintiffs` claim against the second defendants is on the basis that they had knowingly, recklessly and/or negligently procured and/or participated in the breaches of the first defendants and are liable as principals of the first defendants.

Chronology of material events

The plaintiffs filed the writ of summons in this action on 13 May 1993, through their first solicitors, M/s Kenneth CP Tan & Liew. On 17 March 1994, they filed a notice of change of solicitors, to M/s Chor Pee & Co (`the second solicitors`). The first and second defendants entered appearance respectively on 28 and 31 March 1994, through their solicitors, M/s Drew & Napier. On 11 April 1994, 11 months after the writ was filed, the plaintiffs` second solicitors filed the statement of claim. The defendants` solicitors filed the defence on 6 May 1994. The reply was filed on 13 June 1994. Then nothing happened for more than a year, until the second solicitors filed a notice of intention to proceed on 21 September 1995. Summons-for-Directions were taken out by the second solicitors on 1 November 1995 and on 23 December 1995, the court directed that affidavits evidence-in-chief were to be filed and exchanged within three months. This was not done. The next event was the filing of the plaintiffs` list of documents and affidavit verifying list of documents on 26 April 1996. The defendants filed their discovery list and accompanying affidavit on 23 May. Meanwhile on 9 May the plaintiffs filed a notice of motion for admission of Queen`s Counsel, which was refused on 24 May. On 20 June 1996, the defendants filed a summons-in-chambers for security for costs.

Then on 25 June 1996, a notice of change of solicitors was filed by M/s G Krishnan & Co (`the third solicitors`), acting for the plaintiffs. Thereafter discovery was proceeded with. On 20 July 1996 the defendants obtained an order for security for costs of $85,000 be furnished by the plaintiffs within 14 days, in default of which the action would be dismissed. The plaintiffs` appeal against this order was allowed on 31 October and the sum was reduced to $60,000, to be furnished within seven days failing which the action would be dismissed. However the plaintiffs failed to comply with this and on 19 November 1996 the defendants obtained an order from the Registrar dismissing the action. The plaintiffs appealed against the Registrar`s order and it was set aside on 24 February 1997.

Meanwhile on 4 February 1997, a notice of change of solicitors was filed and M/s Mas & Partners were appointed solicitors for the plaintiffs (`the fourth solicitors`). This appointment did not last long and on 25 June 1997 another notice was filed on 25 June 1997 which stated that M/s Steven Lee Dason were appointed solicitors for the plaintiffs (`the fifth solicitors`). Meanwhile, interrogatories were filed and answered by the solicitors for the defendants and plaintiffs.

On 24 September 1997 the fifth solicitors filed a notice for further directions to seek directions on filing of affidavits evidence-in-chief. On 8 October 1997 the court ordered affidavits evidence-in-chief to be filed and exchanged within two months, ie by 8 December 1997. The order also listed as the witnesses whom the plaintiffs intend to call, if necessary, two persons, namely, (i) Willard Choy and (ii) Toshio Kosone. On 8 December 1998, the time limited by the order, the fifth solicitors filed another notice for further directions to extend time for filing of the affidavits to 15 January 1998. This was consented to by the defendants and the court accordingly granted the extension. On 7 January 1998 the defendants filed a notice for further directions to extend the time for filing of the affidavits to 28 February 1998. This was consented to by the plaintiffs and the court granted the extension.

Meanwhile, on 9 February 1998, M/s Rajah & Tann filed a notice of change of solicitors to give notice of their appointment as the defendants` solicitors. On Friday 27 February, the fifth solicitors wrote to M/s Rajah & Tan to ask if they were ready to file and exchange affidavits evidence-in-chief. The following Monday, 2 March, M/s Rajah & Tann replied to confirm that they were ready and asked if the plaintiffs were ready so that a mutually convenient time could be arranged for the exchange. The fifth solicitors did not reply to this letter. On 11 March M/s Rajah & Tann wrote to them to inquire about this and to request that the exchange be carried out within seven days. The fifth solicitors replied on 12 March to say that they had obtained an order to discharge themselves from acting for the plaintiffs. They had, on 23 February 1998 filed a summons-in-chambers to discharge themselves and obtained the discharge order on 10 March. The notice of ceasing to act as solicitors was eventually filed on 21 March. In their letter of 12 March, the fifth solicitors advised M/s Rajah & Tann that they had transmitted their faxes to the plaintiffs who had asked them to inform the defendants solicitors to contact them directly at their fax number. A telephone number in Hong Kong was given.

On 19 March M/s Rajah & Tann wrote to the plaintiffs at the fax number given. They attached a copy of their letter to the fifth solicitors dated 11 March requesting the exchange of affidavits to be carried out within seven days. They gave the plaintiffs seven days, ie until 27 March, to `respond to the matters raised` in their 11 March letter, failing which they would be `applying to the court`. The plaintiffs replied on 25 March. They said, inter alia, that the affidavit of Willard Choy was ready for exchange but made no mention of the affidavit of Toshio Kosone.

M/s Rajah & Tann replied on 27 March. They requested the plaintiffs to appoint local solicitors immediately so that the exchange of affidavits could take place. On 28 March, M/s Kenneth CP Tan & Liew wrote to M/s Rajah & Tann to say that they had been instructed by the plaintiffs to take over conduct of the matter. The notice of change of solicitors was filed on 30 March 1998. The appointments had come full circle because they were the first solicitors of the plaintiffs.

In their letter of 28 March, the plaintiffs` solicitors said that the solicitor in charge was overseas and would be back by 6 April. They asked for an adjournment of four weeks to enable them to take full instructions from the plaintiffs. M/s Rajah & Tann replied on 30 March to say that they did not agree any adjournment on the ground that the plaintiffs had ample opportunity to instruct solicitors previously but had refused to do so. They said that they would apply to court immediately if the exchange could not take place by the following day, 31 March. There was no exchange on 31 March and that same day the defendants filed, in SIC 2369/98, a notice for further directions in respect of the filing of affidavits evidence-in-chief. This prayed for an order that unless the plaintiffs filed and served on the defendants the affidavits evidence-in-chief of Willard Choy and Toshio Kosone within three days, the plaintiffs` action would be dismissed with costs without further order.

SIC 2369/98 came up for hearing before Assistant Register Lee Shen Dee on 3 April 1998. The notes of the proceedings reveal that after some initial clarification on the authority of M/s Rajah & Tann to represent the first defendants and on the chronology of the action, counsel for the plaintiffs confirmed that he was prepared to go on with the hearing on the application. Counsel for the defendants then tendered his skeletal arguments. Then, counsel for the plaintiffs is recorded as saying:

We are prepared to accept an unless order, provided that the summons in chambers is for seven

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