Yip Kong Ban v Lin Jian Sheng Eric

• Jurisdiction: Singapore
• Judgment Date: 21 April 2010
• Date: 21 April 2010
• Docket Number: Originating Summons No 1777 of 2007 (Registrar's Appeal No 105 of 2010)
• Court: High Court (Singapore)

Yip Kong Ban and another

Plaintiff

and

Lin Jian Sheng Eric and another

Defendant

[2010] SGHC 118

Choo Han Teck J

Originating Summons No 1777 of 2007 (Registrar's Appeal No 105 of 2010)

High Court

Civil Procedure—Application for leave to reinstate matter—Vendors failing to pursue claim for damages within 12 months of order—Whether matter should be reinstated—Order 21 r 2 (8) Rules of Court (Cap 322, R 5, 2006 Rev Ed)

The plaintiffs/respondents contracted to buy property from the defendants/appellants. As the first plaintiff was not a Singapore citizen, he needed to obtain approval for the purchase. However, his application for approval was refused. The plaintiffs applied to the High Court for a declaration that there was an implied term in the contract that it was subject to approval being given. This was dismissed by the High Court Judge who further ordered that the plaintiffs be entitled to the sum held by the stakeholder in excess of damages assessed and due to the defendants. The property was sold for less than the original contract price with the plaintiffs. The plaintiffs asked for a refund of the sum held after deducting costs; however, the defendants refused on the ground that the remainder was less than the damages due to them. Therefore, the plaintiffs were not entitled to the remainder, and had to pay the defendants to make up the damages accrued. The plaintiffs contended that by O 21 r 2 (6) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) the defendant not having pursued his claim for damages within 12 months from the High Court Judge's order, the matter was deemed to have been discontinued. The defendants contended that they needed time to get the property sold, and that the failure to proceed with the assessment of damages was due to inadvertence. The assistant registrar dismissed the defendants' application for leave to reinstate the matter under r 2 (8), and the defendants appealed.

Held, dismissing the appeal:

(1) In considering the relevant factors for deciding if the court should exercise its discretion to grant a party leave to reinstate the matter, no distinction should be drawn on the basis that the applicant was the defendant and not the plaintiff: at [5].

(2) When a party did not proceed with a cause or matter he did so either intentionally, in which event there was no issue (except mistake or fraud), or he did so inadvertently. In the latter case, he had to satisfy the court why he should be permitted to have his cause or matter reinstated. In the absence of a sound reason, the matter remained as having been withdrawn: at [5].

Moguntia-Est Epices SA v Sea-Hawk Freight Pte Ltd [2003] 4 SLR (R) 429; [2003] 4 SLR 429 (folld)

Rules of Court (Cap 322,R 5, 2006 Rev Ed) O 21rr 2 (6) , 2 (8) (consd)

Cheah Kok Lim (Sng & Company) for the defendants/appellants

Deborah Liew and Gregory Vijayendran (Rajah & Tann LLP) for the plaintiffs/respondents.

Choo Han Teck J

1 The plaintiffs were contracted to buy a property from the defendants. As the first plaintiff was not a Singapore citizen, he needed to obtain approval for the purchase from the Land Dealings Approval Unit. When his application was refused, he claimed that the contract was subject to approval being given. That was, however, not an express term of the contract. The plaintiffs' application by way of this originating summons for a declaration that it was an implied term was dismissed by Lee Seiu Kin J on 12 August 2008. On 2 October 2008, Lee J further ordered that the plaintiffs be entitled to the sum of $44,000 held by the stakeholder M/s Sng & Co in excess of damages assessed and due to the defendants.

2 On 29 January 2010 the plaintiffs' solicitors wrote to the defendants' solicitors for a refund of the $44,000. The property had in the meantime been sold for $1,080,000 whereas the original contract price with the plaintiffs was $1,100,000. The parties had also settled the question of costs at $30,000 in February 2009. Thus, after deducting this from $44,000...