Yeo Hock Chuan v Wong Chong Weng

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 23 May 1997
• Neutral Citation: [1997] SGCA 21
• Docket Number: Civil Appeal No 87 of 1996
• Date: 23 May 1997
• Year: 1997
• Published date: 19 September 2003
• Plaintiff Counsel: Yeo Heem Lain Julia (Yong & Partners)
• Citation: [1997] SGCA 21
• Defendant Counsel: Adeline Chong (Karuppan Chettiar & Husain)
• Court: Court of Appeal (Singapore)
• Subject Matter: Application by appellant to dismiss action for want of prosecution,Respondent subsequently failing to prosecute action,Appellant not initially filing defence,Respondent commencing action against appellant,Whether prejudice to appellant if action allowed to continue,Applicable principles,Whether appellant's conduct in applying to dismiss action relevant 0 Whether appellant's conduct inconsistent with application,Dismissal for want of prosecution,Whether appellant responsible for or contributing to excessive delay by failing to initially file defence,Civil Procedure

This appeal raises once again the principles governing an application to dismiss an action for want of prosecution and the exercise of discretion in the application of those principles.

The respondent, the plaintiff in the action, to whom we shall refer hereafter as `the plaintiff`, claimed to be the tenant of what he alleged were rent controlled premises owned by the appellant to whom we shall refer hereafter as `the defendant`. The premises in question comprised a wooden structure, nondescript in nature and allegedly used by the plaintiff for his business as well as a residence.

In his action commenced in the High Court on 28 February 1989 the plaintiff claimed that the defendant had demolished the premises in November 1988 when he was away from Singapore. On his return to Singapore he started to rebuild the premises but was prevented from doing so by the defendant who had obtained an interim injunction in proceedings he had begun in the subordinate courts (DC Suit No 7753/88). The plaintiff claimed damages for trespass as well as for damage to the goods allegedly stored at the premises and said to be worth $200,000. Upon commencng his action in the High Court the plaintiff obtained an ex parte interim injunction freezing the defendant`s assets which was discharged on 15 March 1989 and the plaintiff was ordered to pay the defendant`s costs in any event.

Since 15 March 1989 the plaintiff took no further steps to prosecute the action and the defendant, also, did not file his defence to the plaintiff`s claim. Then five and a half years later, on 11 August 1994, the Registry of the Supreme Court, in an exercise to achieve more effective case-flow management, addressed a letter to the respective solicitors on record for the plaintiff and the defendant requesting information on the current status of the action. There was no response. A further letter was addressed to the respective solicitors on record requesting a reply, failing which a registrar`s notice for counsel to attend before the registrar for directions would be issued. In fact such a notice was issued on 11 December 1995.

This prompted the defendant to apply by summons for the action to be dismissed for want of prosecution. The plaintiff`s solicitor on record was served. At the hearing of the summons on 7 March 1996 he informed the registrar that he had no instructions from the plaintiff; that he could not find him; and that the plaintiff had not responded to his letters. Since the action had lain dormant for seven years the registrar dismissed it and made no order for costs.

It is on affidavit that the plaintiff had, sometime in 1992, removed his papers from his then solicitors with a view to instructing other solicitors but had not done so. On learning that his action had been dismissed for want of prosecution, he instructed new solicitors to appeal to the High Court.

An appeal was duly lodged and the appeal was heard by a judge of the High Court on 9 May 1996 who allowed the appeal and restored the action. The defendant then appealed to us which we heard on 27 April 1997. We allowed the appeal thus restoring the registrar`s order dismissing the action for want of prosecution. We now give our reasons.

It seems to us that the learned judge was influenced by two factors, namely, that the defendant had not filed his defence and had thereby `substantially caused or contributed to the non-prosecution of the action` and that the defendant had failed to explain the prejudice he had suffered or would suffer by the delay. In his grounds of judgment the learned judge said:

8 By definition, want of prosecution is the plaintiff`s default in complying with the rules of excessive delay in the prosecution of the action. Accordingly if a defendant has failed to take the step which is condition precedent to the plaintiff presenting the action, he should not be allowed to take advantage of his own failure or heard to complain of a prejudice to him. So the court will look at the conduct of both parties. So, if the defendant has substantially caused or contributed to the non-prosecution of the action he should not be given the advantage of stymieing the plaintiff and then dismissing the action for non-prosecution with the case not being heard on its merits. Each party therefore is under an obligation to do his part in advancing the matter so that there can be a fair trial.

9 The position before me was that the defendant having not filed his defence had no ground to complain. He was not concerned whether the action went to trial because he failed to file his defence. He failed to explain the prejudice he suffered. He relied on a ground which did not exist. I therefore restored the action so that the plaintiff could apply for judgment or if the defendant decided to take the next step of filing a defence, the action could proceed to trial.

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