Zulkifli Baharudin v Koh Lam Son

• Judgment Date: 11 May 1999
• Date: 11 May 1999
• Docket Number: Suit No 1934 of 1998 (Registrar's Appeal No 587 of 1998)
• Court: High Court (Singapore)

Zulkifli Baharudin

Plaintiff

and

Koh Lam Son

Defendant

[1999] SGHC 122

Lim Teong Qwee JC

Suit No 1934 of 1998 (Registrar's Appeal No 587 of 1998)

High Court

Civil Procedure–Rules of Court–Interlocutory judgment entered in default of defence for damages including aggravated damages and costs on full indemnity basis–Whether judgment irregular and should be set aside–Order 19 rr 3 and 7 Rules of Court (Cap 322, R 5, 1997 Rev Ed)–Civil Procedure–Rules of Court–Non-compliance––Defendant's failure to state grounds of objection in summons–Whether failure mere irregularity–Whether objections could be raised–Order 2 r 2 Rules of Court (Cap 322, R 5, 1997 Rev Ed)–Civil Procedure–Rules of Court–Setting aside judgment in default of defence–Whether court should exercise discretionary power to set aside judgment–Applicable principles–Order 19 r 9 Rules of Court (Cap 322, R 5, 1997 Rev Ed)

The plaintiff commenced this action by writ indorsed with a statement of claim. It was served on the defendant's solicitors who entered an appearance for him the following day. As no defence was served by the due date, the plaintiff entered interlocutory judgment in default of defence pursuant to O 19 r 3 of the Rules of Court (Cap 322, R 5, 1997 Rev Ed) for damages, including aggravated damages, to be assessed, and costs on a full indemnity basis (“the judgment”).

The defendant applied by summons for the judgment to be set aside. The defendant's solicitor deposed in his affidavit that no defence was filed as he was very busy. He also testified that he filed the defence on the very day the extended deadline granted by the plaintiff expired, but that the judgment was already entered by then. The senior assistant registrar refused the application.

On appeal, the defendant argued that the judgment was irregular as the claim included liquidated damages, and default judgment for such a claim should have been brought pursuant to O 19 r 7 which required the court's sanction. Further, the plaintiff was entitled to costs on the standard basis only. Alternatively, even if the judgment was regular, the court had the power to set it aside under O 19 r 9. Although such arguments were raised, the summons accompanying the defendant's application to set aside stated no grounds of objection as to any irregularity.

Held, dismissing the appeal:

(1) The defendant's failure to state the grounds of objection to the alleged irregularities in his setting-aside application, as required by O 2 r 2, was not a mere irregularity. As the order gave the court not only a discretion to set aside the judgment but also to vary it, the circumstances concerning the irregularity should be before the court. However, as the plaintiff did not object to the irregularity, and the senior assistant registrar had heard the arguments and ruled upon it, it would be wrong to decline to hear the application: at [11] and [12].

(2) Order 19 r 3 applied only to claims for unliquidated damages. Whether the plaintiff had in fact suffered any damage and if so to what extent damages were aggravated, were matters for the court's assessment. A claim for damages, which included aggravated damages, was a single claim for unliquidated damages: at [13], [14] and [18].

(3)“Costs” in O 19 r 2 meant costs taxed under O 59 whether on the standard or on the indemnity basis. There was no reason to limit its meaning to costs taxed on the standard basis only. However, the court would only order costs to be taxed on the indemnity basis where it appeared appropriate. The plaintiff's claim was appropriate as (a) the defendant did not deny the plaintiff's allegations of fact and neither did he serve his defence, (b) the question as to whether costs were unreasonably incurred or were of an unreasonable amount were matters for taxation, and (c) they were not dependent on any claim which had not been adjudicated upon. In the result, the judgment was regular: at [19] to [21].

(4) The exercise of the power under O 19 r 9 to set aside a judgment entered in default of defence was discretionary, and the primary consideration was whether the defence carried some degree of conviction, or had a real prospect of success: at [22] and [33].

(5) The words complained of were defamatory and the defence was without merit. Firstly, none of the affidavits of the defendant's solicitors denied the meanings of the words complained of as alleged by the plaintiff. Secondly, the particulars in the defence did not offer or suggest any non-defamatory meaning for the words complained of. The defendant failed to show that his defence carried any degree of conviction or had a real prospect of success. In the result, the judgment should not be set aside and the appeal was dismissed: at [30] and [34].

Abdul Gaffer bin Fathil v Chua Kwang Yong [1994] 3 SLR (R) 1056; [1995] 1 SLR 484 (folld)

Evans v Bartlam [1937] AC 473 (folld)

Hong Leong Finance Ltd v Tay Keow Neo [1991] 2 SLR (R) 841; [1992] 1 SLR 205 (folld)

Lee Hiok Ping v Lee Hiok Woon (Suits Nos 1401/73 and 2457/81) (refd)

Lee Kuan Yew v Seow Khee Leng [1988] 2 SLR (R) 252; [1988] SLR 832 (refd)

Lee Kuan Yew v Vinocur John [1996] 1 SLR (R) 840; [1996] 2 SLR 542 (refd)

Panwell Investments Pte Ltd v Lau Ee Theow [1995] 2 SLR (R) 520; [1995] 3 SLR 137 (distd)

Saudi Eagle, The [1986] 2 Lloyd's Rep 221 (folld)

Rules of Court (Cap 322,R 5, 1997 Rev Ed)O 2r 2, O 19rr 3, 7, 9 (consd);O 2rr 2 (1), 2 (2),O 10r 1 (2), O 18rr 2 (1), 13 (3),O 59rr 4 (1), 27 (1),Appendix 2

Engelin Teh SC and Thomas Sim (Engelin Teh & Young) for the plaintiff

Michael Puhaindran (Niru & Co) for the defendant.

Lim Teong Qwee JC

1 This is an appeal against the decision of Senior Assistant Registrar James Leong who dismissed the defendant's application to set aside the interlocutory judgment entered on 25 November 1998 in default of defence. I heard the appeal on 18 January 1999 and dismissed it and these are my written grounds.

2 The action was commenced by writ which was indorsed with a statement of claim. It is a claim for libel. The writ was served on the defendant's solicitors Niru & Co on 30 October 1998 and the defendant entered an appearance by his solicitors the next day. In accordance with O 18 r 2 (1) he had to serve a defence on the plaintiff by 21 November 1998 (or 20 November 1998 if in accordance with O 10 r 1 (2) his solicitors had made the prescribed indorsement on...