Yeoh Poh San and Another v Won Siok Wan

• Jurisdiction: Singapore
• Judge: Woo Bih Li JC
• Judgment Date: 17 June 2002
• Neutral Citation: [2002] SGHC 129
• Docket Number: Suit No 12 of 2002 (Registrar's
• Date: 17 June 2002
• Year: 2002
• Published date: 19 September 2003
• Plaintiff Counsel: Kuppanchetti and Shanti Supramaniam (Alban Tay Mahtani & De Silva)
• Citation: [2002] SGHC 129
• Defendant Counsel: Andre Arul (Arul Chew & Partners)
• Court: High Court (Singapore)
• Subject Matter: 'Compromise order',Pleadings,Application by defendant for extension of time to file defence until determination of such appeal,Civil Procedure,Whether to allow such application for extension of time,Order requiring defendant to file defence on undertaking by plaintiff's lawyer not to treat it as step in proceedings pending appeal on stay of proceedings,Whether right for plaintiff to insist on filing of defendant's defence before conclusion of appeal,Judgments and orders,Relief available to defendant,Policy considerations against granting of such orders,Extension of time to file defence pending appeal against dismissal of stay application,Defence

by that day, the time for filing the Defence expired. The Plaintiff applied for judgment in default and the Defendant applied for an extension of time to file her Defence. Her application contained two alternative prayers: one sought an extension of 14 days from the date of the order to be made and the other which sought a stay until ‘final determination’ of the appeal. The Deputy Registrar granted the Defendant an extension of 14 days on the undertaking of the Plaintiffs’ counsel not to treat the filing of the Defence as a step taken by the Defendant in the proceedings in view of the appeal on the Defendant’s application for stay.

The Defendant filed this appeal against the Deputy Registrar’s order. Meanwhile, the appeal on the stay proceedings was dismissed by the judge-in-chambers. The Defendant had written to the judge to request further arguments, failing which she intends to appeal to the Court of Appeal. In this appeal, she sought for an extension of time to file her Defence until she exhausted all avenues of appeal.

Held

, allowing the appeal

(1) When a plaintiff’s solicitor is aware that a defendant has filed an appeal against the refusal to order a stay, he should not insist on the filing of the Defence pending the hearing of the appeal. This principle applies to an application for a stay on any grounds and is not confirmed to a challenge based on an absence of jurisdiction. To insist on the filing of the Defence is wrong because it will defeat the very purpose of the appeal against the refusal to order a stay. ( 18)

(2) If the plaintiff’s solicitor insists on the filing of the Defence, the defendant’s solicitor should apply for an extension of time to file pending the outcome of the appeal. An extension of time should generally be granted so as not to render the appeal nugatory. ( 19)

(3) Compromise orders that order a defendant to file his Defence pending his appeal on the stay proceedings provided the plaintiff undertakes not to treat the filing of the Defence as a step in the proceedings should not be granted for the following reasons: First, no such compromise orders are granted before the original stay application is heard and the position should be the same for appeals on stay applications. Secondly, to insist on the filing of a Defence while an appeal on the stay was pending is prejudicial to the defendant who has to meet the merits of the plaintiff’s claim while seeking a stay. Thirdly, if the defendant succeeds in the appeal, he may never have to meet the plaintiff’s claim on the merits as the plaintiff may abandon his claim in the alternate jurisdiction. Lastly until all avenues of appeal in relation to a stay application are exhausted, our courts are not properly seized of the matter. ( 24-29)

(4) On the facts, due to the peculiar words used in the Defendant’s application for an extension of time and the fact that the Defendant orally requested for an extension of time and obtained it from the Plaintiffs, a compromise order was granted as an exception to the general rule that compromise orders should be granted.( 30)

Judgment

GROUNDS OF DECISION

Background

1. The Plaintiffs Yeoh Poh San and Choo Lee Chin are husband and wife and are Malaysian citizens. They claim various sums of money from the Defendant Won Siok Wan who was a female companion of the First Plaintiff. She is also a Malaysian citizen. The claim is based on alleged wrongful withdrawals of monies by the Defendant from a joint bank account in Singapore in the name of the Second Plaintiff and the Defendant. The source of the monies is allegedly the First Plaintiff.

2. The Writ of Summons was filed in the High Court in Singapore and the Plaintiffs applied for and obtained leave to serve it, with a Statement of Claim endorsed thereon, on the Defendant at her residence in Malaysia.

3. After the Defendant was served, her Singapore solicitors entered an appearance on her behalf and applied for an order that the proceedings be stayed or dismissed or discontinued on the ground of multiplicity of proceedings or forum non conveniens. Apparently there were related actions in Malaysia and Thailand as well.

4. The stay application was heard by an Assistant Registrar on 17 April 2002 and was dismissed with costs. There was an alternative prayer in the stay application for extension of time to file a Defence but apparently this was not pursued and no order was made thereon.

5. The next day i.e on 18 April 2002, the Defendant filed a Notice of Appeal to the judge-in-chambers. This was fixed for hearing on 21 May 2002. It was served on the Plaintiffs’ solicitors on 24 April 2002. In the meantime, the time for filing the Defence expired. Apparently, someone from the Defendant’s solicitors’ firm orally asked for and obtained an extension of time to file the Defence. The time for doing so expired at 4pm of 30 April 2002. Thereafter the Plaintiffs’ solicitors applied for judgment in default of Defence and the Defendant’s solicitors in turn applied for an extension of time. The Defendant’s application was not aptly worded. It was couched in terms seeking an extension to file the Defence within ‘fourteen (14) days from the date of the order herein or upon final determination of the Defendant’s application for a stay of the action or its dismissal or discontinuance’. In other words, the first limb of the prayer only sought an extension of 14 days from the date of the order to be made and it was the second limb which sought a stay until ‘final determination’.

6. Both applications were heard before the Deputy Registrar Mr Foo Chee Hock on 17 May 2002. He made one Order i.e to grant the Defendant an extension of time of 14 days to file her Defence on the undertaking of the Plaintiffs’ counsel not to treat the filing of the Defence as a step taken by the Defendant in the proceedings in view of the pending appeal by the Defendant to the judge-in-chambers. However, he declined to require a broader undertaking from the Plaintiffs’ counsel i.e for the undertaking to apply to all steps taken by the Defendant thereafter.

7. The Defendant then filed a Notice of Appeal against this order on the basis that what the Defendant really wanted was an extension of time to file the Defence until she exhausted all avenues of appeal.

8. When this appeal came up for hearing before me on 30 May 2002, the main appeal on the stay application had been heard by Belinda Ang JC and dismissed....