1.

THE COURTS & MODES OF

COMMENCEMENT
ORGANISATION & CIVIL JURISDICTION OF THE COURTS

OVERVIEW OF JURISDICTION ACROSS THE COURTS

Small Claims Magistrates’ District Court High Court

Tribunal Court
Jurisdictional Value of claim Value of claim Value of claim < $250,000. Value of claim > $250,000.
Limit < $10,000 or < $60,000.
$20,000 with But parties can agree for the Except probate claim unless estate
consent of District Court to have jurisdiction value > $3 million.
both parties. even if the monetary limit is Except re-sealing of foreign grant.
exceeded.
* Has subject Other matters:
matter Or abandon excess for District Admiralty
limitation Court to have jurisdiction. Winding-up
Bankruptcy
Admission of lawyers

Appellate - - - From Small Claims Tribunal,

Jurisdiction Magistrates’ Court and District Court
 *Small Claims Tribunal subject matter jurisdiction – claims must be limited to:
o Contracts for the provision of goods and services.
o Tort for damage to property.
o Claims arising from any contract relating to a lease of residential premises not exceeding 2 years.
 Separate procedures for claims under the Small Claims Tribunal.
o No legal representation allowed.
o Informal rules and procedure.
o s 5(3)(b), Small Claims Tribunal Act: All claims must be lodged/filed at the Small Claims Tribunal within 1 year
from the date on which the cause of action accrued.
 s 39, Subordinate Courts Act covers a situation where one sues in High Court but recover damages less than $250,000.
o If between $60,000 and $250,000, not allowed to recover more costs than the District Court scale.
o If less than $60,000, not allowed to recover more costs than the Magistrate Court scale.
 s 48, Subordinate Courts Act (changed to State Courts Act): No appeal from the District Court  High Court if both
parties agree prior to the outcome of the District Court hearing that there shall be no appeal.

TENSION BETWEEN SUBSTANTIVE AND PROCEDURAL LAW

 UOB v Ng Huat Foundations (2005)
o HELD: Procedural justice is just one aspect of the holistic ideal and concept of justice.
 Procedural justice as important as substantive justice – if procedure is unjust, outcome will be tainted.
 But where there is a tension, substantive justice takes precedence.

GENERAL POWERS OF THE COURT IN CIVIL PROCEDURE

INHERENT JURISDICTION

 O 92 r 4, ROC: Inherent powers of the court.

o (1) For the avoidance of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or
affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to
prevent an abuse of the process of the Court.
o Note: O 92 r 4, ROC does not confer inherent jurisdiction – it merely states that the ROC will not limit the
court’s inherent jurisdiction.
 Heng Joo See v Ho Pol Ling (1993)
 HELD: Inherent jurisdiction is derived from the common law.
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  Singaporean courts are reluctant to exercise their inherent jurisdiction.
o Wee Soon Kim v Law Society of Singapore (20001)
 HELD: Such a need (to invoke the court’s inherent jurisdiction) does not arise if the procedural
mechanism is in place, which effectively governs the circumstance.
o Samsung Corp v Chinese Chamber Realty (2003)
 HELD: High Court held that it will not exercise its inherent jurisdiction to override the ROC, and will
not do so even if the intention was to prevent an injustice.
o UCMI Ltd v Tokio Marine (2006)
 HELD: Reasonable necessity of order is required.

DEALING WITH NON-COMPLIANCE WITH RULES

 If there is too rigid an adherence to the rules, it may unjustly deprived a party of his rights. However, if it is too flexible,
it may lead to abuse, confusion and uncertainty.
o Hence, under O 2 r 1, ROC, proceedings in breach of ROC are firstly only rendered irregular (not null and void).
 O 2 r 1, ROC: Non-compliance with Rules.
 (1) If there has been a failure to comply with the requirements of these Rules, the failure
shall be treated as an irregularity and shall not nullify the proceedings, etc.
o Only then, does the court exercise jurisdiction under O 2 r 2, ROC to make an appropriate order (e.g. penalising
the offending party with an order for costs).
 O 2 r 2, ROC: Application to set aside for irregularity.
 (1) An application to set aside for irregularity any proceedings, etc. shall not be allowed
unless it is made within a reasonable time and before the party applying has taken any
fresh step after becoming aware of the irregularity.
o Rein v Stein (1892)
 HELD: Once a fresh step is taken, it is considered a waiver of the right to set
aside the proceedings, etc. on the irregularity.
 (2) An application under this Rule may be made by summons and the grounds of objection
must be stated in the summons or supporting affidavit.

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2. BEFORE COMMENCEMENT OF
PROCEEDINGS
LEGAL CAUSE OF ACTION
 Understand the elements of legal liability.
 Consider whether more facts are required, or the facts require clarification.
 Consider creativity with other causes of action – e.g. economic torts, restitution, breach of statutory duty.

JURISDICTION AND APPROPRIATE FORM

 Consider the various jurisdictions of the various courts.
 Consider the choice of jurisdiction/law clause in a contract.
o Arbitration clauses – e.g. easier recognition/enforcement via the New York Convention.
o Forum non conveniens principle.
o Commercial considerations for the choice of forum.
o Availability of assets for enforcement.

LOCUS STANDI TO SUE AND BE SUED

 Consider whether the plaintiff has the locus standi to sue, and whether the defendant has locus standi to be sued.

PERSONS UNDER DISABILITY & INFANTS

 O 76 r 1, ROC: Persons under disability include:

o Infant – person who is a minor.
o Patient – person incapable of managing himself or his affairs.
 O 76 r 2(1), ROC: Such persons cannot sue or defend – a litigation representative is required.
 O 76 r 2(3), ROC: The litigation representative must have a solicitor.
 O 76 r 6, ROC: If an action has commenced and such persons have not entered an appearance, the plaintiff has to file an
application to appoint a litigation representative before continuing action.
 Service of documents to such persons.
o Infant – on parent/guardian.
o Patient – person appointed under the Mental Disorders and Treatment Act.
o Or in default – person residing with/caring for the infant/patient.

PARTNERSHIPS

 O 77 r 1, ROC: Partners may sue and be sued in the name of the partnership.
 Advantages.
o Need not set out all the name of the parties.
o May serve at/use the partnership’s business address.
o Note: The use of the firm’s name is a tool of convenience as it is still not considered a separate legal entity.
o Note: As the names of the firms can be confused with individuals, must add “sued as a firm”.
 Service of writ.
o Serve on any one or more of the partners.
o At the principal place of business on any person having the control and management of the business there.
 O 77 r 4(1), ROC: Appearance cannot be entered in the name of the firm.

SOCIETIES

 May sue or be sued in their own name as registered.

 Service of writ.
o Serve on an officer of the society.
o At the registered address – either physically or by registered post.

ACTIONS AGAINST ESTATES

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  When the defendant against whom an action would have lain dies and the cause of action survives, but no probate or
letters of administration granted and time bar setting in:
o O 15 r 6A(1), ROC permits personal representative to be sued although not named.
o O 15 r 6A(2), ROC: Must title is “Personal Representative of X, deceased”.
 Plaintiff shall then apply to the court to appoint a person to represent the estate.
o O 15 r 6A(6), ROC: Public Trustee may be appointed but only to accept service, unless Public Trustee consents.
 Cannot enter judgment in default of appearance against estate.

LIMITATION PERIOD

LENGTH OF LIMITATION PERIODS

 Personal injury, latent injury, and damage – 3 years (refer to below).

 Contract, tort – 6 years.
 Admiralty claims – 1 year.
 Recovery of land – 12 years.
 Action on judgment – 12 years.
 Judgment interest – 6 years.
 Revenue claims – 1 year.
 Contribution claims – 2 years from judgment/award.

LATENT INJURY/DAMAGE: SECTION 24A, LIMITATION ACT

 Covers actions in negligence, nuisance, breach of duty where injury/damage is latent (i.e. cannot be discovered earlier).
 Time limits in respect of latent injuries and damage.
o For latent personal injury:
 s 24A(2)(a), Limitation Act: 3 years from the date on which the cause of action accrued; or
 s 24A(2)(b), Limitation Act: 3 years from the earliest date on which the plaintiff has the knowledge
required to bring an action (if that period expires later then in (a)).
o For other damage.
 s 24A(3)(a), Limitation Act: 6 years from the date on which the cause of action accrued; or
 s 24A(3)(b), Limitation Act 3 years from the earliest date on which the plaintiff has the knowledge
required to bring an action (if that period expires later then in (a)).
 “Knowledge” which plaintiff might reasonably have expected to acquire.
o s 24(4)(a), Limitation Act: Injury/damage attributable in whole/part of the act alleged to have caused the
injury/damage.
o s 24(4)(b), Limitation Act: Identity of the defendant.
o s 24(4)(c), Limitation Act: Identity of persons other than the defendant.
o s 24(4)(d), Limitation Act: Material facts about the injury/damage which would lead a reasonable person to
consider it sufficient serious to justify instituting proceedings.

LONG-STOP DATE: SECTION 24B, LIMITATION ACT

 Overriding maximum period of timebar is 15 years from the accrual of the cause of action.

MODES OF COMMENCING CIVIL PROCEEDINGS

WHEN TO ISSUE ORIGINATING SUMMONS?

o O 5 r 4(2), ROC: When there is unlikely to be any substantial dispute of fact.

o O 5 r 3, ROC: Any application under any written law if mode is not specified – e.g. applications under Companies Act.
o O 5 r 4, ROC: Construction of written law or instrument, or questions of law.

WHEN TO ISSUE WRIT OF SUMMONS?

o O 5 r 2, ROC: When there is likely to be substantial disputes of fact.

o O 5 r 4, ROC: When summary judgment is sought, even if there is no dispute of fact.
o O 70 r 2(1), ROC: Action in rem.
o O 72 r 2(1), ROC: Probate action.

CONVERSION OF ORIGINATING SUMMONS TO WRIT OF SUMMONS

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 o O 28 r 8, ROC: By an order of court, a cause of action begun by originating summons may be allowed to continue as
though begun by Writ of Summons.
o Court may order pleadings to be served or for affidavits to stand as pleadings.
o However, it may be too late at the appeal stage.
o LS Investment v MUIS (1998)
 HELD: Court of Appeal refused to grant a re-trial on the basis that the original mode of
commencement ought to have been a writ. Court further noted that the appellant ought to have
applied for conversion before the court below delivered its verdict.
o If the application clearly involved substantial disputes of fact right from the start, the court would likely not grant the
application for conversion.
o Re 462 Green Lane (1971)
 Since there were allegations of fraud, should have been by writ.
 HELD: Court refused to convert action. Originating summons was struck out and the plaintiff had to
re-start the action by writ.
o C.f. Re Deadman (1971)
 HELD: Court considered Re 462 Green Lane (1971), but allowed the originating summons to continue
as if it were a writ action.
 The court held that it should not wholly set aside the proceedings only on grounds that a wrong mode
of commencement was chosen.
 Court has discretion to regularise any proceedings – failure to comply with requirements of
the ROC shall be treated as an irregularity and shall not nullify the proceedings.
o C.f. Chee Siok Chin v Minister for Home Affairs (2005)
 HELD: Irregularity is not a fatal defect – there is no good reason why the court should not assess such
an error with some latitude and rectify it under its wide discretionary powers, thus allowing the
proceedings to continue assuming that the proceedings were not fundamentally and irremediably
flawed on some other substantive grounds.
o Note: These 3 cases highlight that O 28 r 8, ROC is very discretionary in nature.

WARRANT TO ACT
 O 64 r 7(1), ROC: Every solicitor must obtain a warrant to act.
 O 64 r 7(2), ROC: Without a warrant, the solicitor has prima facie no authority.
o Proceedings may be struck out for the want of authority.
 Note: If new appointment as solicitor, also file a notice of change of solicitors with the court, and advise client on the
strengths and weaknesses of the case as well as give costs estimates.

CLIENT’S NEEDS AND CONCERNS

 Basically, advising on the law is what a lawyer must do and is expected to do.
 However, a good lawyer has the ability to tailor his advice to suit the client, strategize with/for the client, and
recommend practical solutions to the problems.
o Hence, must consider client specific factors such as money, time, psychology, public relations, the client’s
ultimate real objective, other non-legal avenues of recourse, and enforceability of the judgment.

CONFLICT OF INTEREST
o Consider legal conflict of interest, as well as commercial conflict of interest.

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3. COMMENCING A WRIT ACTION
WRIT OF SUMMONS (PLAINTIFF)

FORM

 O 6 r 1, ROC: Every writ must be in Form 2.

 For an admiralty writ in personam or in rem, it must be in Form 159.

ENDORSEMENTS

 O 6 r 2(1), ROC: Before a writ is issued, it must be endorsed with the following:
o (a) Statement of claim or concise nature of claim.
o (b) Endorsement of cost/payment/stay (for debt or liquidated demand).
o (c) and (d) Statement of capacity (if the plaintiff or defendant sues or is sued in representative capacity).
o (e) (If suing by solicitor) With plaintiff’s address, solicitor’s name or firm and business address of solicitor
within jurisdiction.
o (f) (If suing in person) Address of residence within jurisdiction, or if none, the address within jurisdiction for
service of documents, occupation.
o (g) Number of days within which appearance is to be entered.

PROCEDURE FOR THE ISSUANCE OF THE WRIT

 O 6 r 3, ROC: Process for the issuance of a writ.

o (1) Plaintiff to file with Registrar an original and one copy, and one additional copy for each defendant.
o (2) Registrar to assign serial number to writ, sign, and date original and copies of the writ, and seal all copies.
 Writ deemed issued and action has commenced on date Registrar did the above.

VALIDITY OF THE WRIT

 Duration of writ.
o O 6 r 4(1), ROC: Validity of a Writ of Summons is 6 months “beginning with the date of its issue” and 12
months if necessary to obtain leave to serve out of jurisdiction.
 Trow v Ind Coope (West Midlands) Ltd (1967)
 HELD: Validity of the writ begins with the actual day on which it is issued.
 Note: “Date of its issue”, hence if issued on 10/01/13, 6 months validity is till 09/07/13.
 Extension/renewal of writ.
o [1] O 6 r 4(2), ROC: Validity can be extended for up to 6 months (or 12 months as the case may be (e.g. if
service is out of jurisdiction)), and application can be made before or after the writ has expired. However,
once writ has expired beyond the grace period to renew, the court has no power to extend validity.
 Official Receiver v QBE Insurance (International) Ltd (1988)
 HELD: Since the court’s power under O 6 r 7, ROC is limited to extending validity for [6 or 12]
months, it means that an application for renewal must be made at latest within [6 or 12]
months of the expiry of the writ – there is no power to grant 2 or more successive renewals
to bring the writ up to date.
 Note: Basically just a grace period of the same validity period (i.e. 6 + 6, or 12 + 12).
o [2] Procedure for the extension of writ.
 Application for renewal is made ex parte by summons to the Registrar, and must be supported by an
affidavit with full and frank disclosure of material facts.
 If there is non-disclosure, the renewal may be set aside, and the court will balance the
hardship to each party in its decision whether to set aside (see The Lircay (1997)).
 The Vasily Golovnin (2008)
o HELD: Mere disclosure of material facts without more/context is insufficient.
o [3] Principles applicable to the extension of writ.
 Power to extend the validity of a writ should be exercised for a “good reason”.
 Examples where the court has found a good reason.
o Where the writ has not been served to save costs, especially where there was no
delay to the defendants (see Kleinwort Benson v Barbrak Ltd (1987) and Lim Hong
Kan v Mohd Sainudin bin Ahmad (1992)).

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 o Where the defendant has requested for the service of the writ be withheld (see Kun
Kay Hong v Tan Teo Huat (1984)).
o Where there was no opportunity to serve writ – e.g. vessel has not called into port.
 Examples where the court has not found a good reason.
o Delay arose because the plaintiff was awaiting the outcome of other proceedings
that might have an impact on the instant proceedings (see Battersby v Anglo-
American Oil Co Ltd (1945) and Dagnell v JL freedman (1993)).
o Service was not effected because parties were negotiating and there was no clear
agreement by the defendant to the delay in the service of the writ (see Heaven v
Road (1965) and Easy v Universal Anchorage Co Lt (1974)).
o Plaintiff has insufficient funds to proceed with litigation (see Baly v Barrett (1989)).
o Negligence of the plaintiff’s solicitors (see New Ching Kee v Lim Ser Hock (1972)).
o Plaintiff had failed to take reasonable steps to effect service of the writ (see The Big
Beacher (1984)).
 Whether there is a good reason depends on all the circumstances in any particular case.
 Balance of hardship is a relevant matter to be considered, but only if good reason is already shown.
 Discretion of the judge should not be interfered with by an appellate court except on special grounds.
o Costs.
 If application for extension/renewal is granted, costs follow the event/plaintiff gets costs in the cause.

SERVICE OF THE WRIT

 General rule.
o O 62 r 1(1), ROC: Documents need not be served personally unless the ROC requires it.
o O 62 r 1(2), ROC: Court has the power to dispense with the requirement of personal service.
o O 10 rr 1 and 5, ROC: All originating processes must be served personally.
 There are exceptions to this rule.
 Personal service.
o O 62 r 2(1), ROC: Personal service must be effected by:
 A process server of the Supreme Court.
 By a solicitor.
 By a solicitor’s clerk whose name and particulars have been notified to the Registrar.
 By a named person specially allowed by a Registrar
 Via ERS under O 63A r 12(1)(b), ROC.
o Personal service must comply with paragraph 31, Supreme Court Practice Directions and paragraph 10,
Subordinate Courts Practice Directions.
o Personal service is effected by leaving a sealed copy of an originating process with the person (O 62 r 3, ROC)
and personal service on a company is effected by leaving the document with the registered office (s 387,
Companies Act).
 Heath v White (1844)
 Process server called out to the defendant (who was at an upper window of his house) telling
him that he had a writ against him, held up a copy for him to see, and then threw it down in
the presence of the defendant’s wife.
 HELD: Insufficient service.
 Frith v Donegal (1834)
 HELD: Service on the wife of the defendant not good service.
 Christmas v Eicke (1848)
 HELD: Putting a copy of the writ through the crevice of the door of the room in which the
defendant was and telling him that it is a copy of the writ is insufficient.
 Kenneth Alison Ltd v AE Limehouse & Co (1992)
 Defendant instructed and authorised his personal assistant to accept service on his behalf.
 HELD: Good and sufficient service.
 Substituted service.
o O 62 r 5, ROC: Manner of application.
 Plaintiff may apply for substituted service by a summons (in Form 60) supported by an affidavit (in
Form 137, stating why he believes that attempts at service were reasonable) if it is impractical for any
reason to serve that document personally on that person.
 Paragraph 32, Supreme Court Practice Directions and paragraph 11, Subordinate Courts
Practice Directions: 2 reasonable attempts at personal service should be made before an

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 application for an order for substituted service is filed – e.g. advertise in newspaper, or post
notice on the front door, etc.
o Wilding v Bean (1891)
 HELD: Substituted service generally not permissible where personal service within jurisdiction is not
possible – (instead, service out of jurisdiction).
o Fry v Moore (1889), Re Urquhart (1890)
 HELD: Substituted service permissible even where personal service within jurisdiction is not possible if
defendant left the jurisdiction to evade service.
o Ng Swee Hong v Singmarine Shipyard Pte Ltd (1991)
 HELD: Substituted service is generally possible where the purpose of O 62 r 5, ROC is achieved.
 On the facts, the defendant’s son was in contact with the defendant (who was constantly moving
from country to country), and the court held that the requirements of 0 62 r5, ROC were satisfied.
o Consistel Pte Ltd v Faroq Nasir (2009)
 Respondents had been living overseas and were not in Singapore when the writ was issued. The
appellants attempted personal service, found a friend who resided in their last known address and
applied for substituted service.
 Respondents received notice, and after entering appearance, attempted to set aside service.
 HELD: Substituted service should not have been ordered.
 Where a defendant had left Singapore before a writ was issued against him, the plaintiff
should seek leave to serve the writ out of jurisdiction before resorting to substituted service.
o This was so even if substituted service may be effective in bringing to writ to the
defendant’s attention.
o Not an absolute rule – exceptions include:
 Where defendant leaves the country in anticipation that legal proceedings
will be initiated against him.
 Where defendant is constantly moving from country to country, such that
it is impossible to serve the writ on him personally.
 Ordinary service.
o O 62 rr 1 and 6, ROC: Service of other, non-originating, processes may be by ordinary service – i.e. by leaving
the document at the address, fax, email, EFS, and any other mode as agreed between the parties.
 Hastie & Jenkerson v McMahon (1990)
 HELD: Modes prescribed in O 62 r 6, ROC are permissive, not exhaustive.
 Time for service.
o O 62 r 6A, ROC: Service before midnight = service on that day.
o O 62 r 8, ROC: Service before 4pm = service on that working day, and after 4pm = next working day.
 Memorandum of service.
o O 10 r 1(4), ROC: Must be filed within 8 days of service in Form 6.

SERVICE OUT OF JURISDICTION

 Ong & Co Pte Ltd v YL Chow (1987)

o HELD: O 11, ROC procedures must be adhered to strictly.
 O 11 r 1, ROC: Service out of jurisdiction of any process generally permissible only with leave.
o O 11 r 8, ROC: Service of subsequent documents do not require leave once it has been granted for the
originating process.
 O 11 r 2, ROC: Manner of application.
o Summons supported by affidavit in Form 7 deposing to the following:
 Grounds for the application.
 Belief that plaintiff has a good cause of action.
 Place/country that the defendant may be found in.
 Grounds for the deponent’s belief that there is a real issue which the plaintiff may reasonably ask the
court to try (where the application is under O 11 r 1(c), ROC).
 Whether it is necessary to extend the validity of the writ.
o Transniko Pte Ltd v Communication Technology Sdn Bhd (1996)
 HELD: In making the application, there is duty to make full and frank disclosure, or the order may be
set aside.
o Order granting leave is to be extracted in Form 8.
 O 11 r 3(1) to (7), ROC: General provisions for service abroad.
o O 11 r 3(2), ROC: Service must not be contrary to the law of the country in which it is served.

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 o O 11 r 3(3), ROC: Process need not be served personally so long as it is served in accordance with the law of
the country in which it is served.
 O 11 r 4(2), ROC: Service in Malaysia or Brunei.
o (a) Through the government of the country.
o (b) Through a Singapore consular authority except where this is contrary to the law of the country.
o (c) By a method of service authorised by the law of the country for service of originating process in that
country.
o Ngan Chin Wen v Panin International Credit (2003)
 HELD: Malaysian Court of Appeal held that service by a private agent of a foreign process is ultra vires
of Malaysia’s Order 65, ROC.
o Fortune Hong Kong Trading Limited v Cosco Feoso (Singapore) Pte Ltd (2000)
 HELD: Court observed the service of process in a foreign jurisdiction.
 Ultimately, it depends on whether the country treats the service of process by a private
agent as an encroachment upon its sovereign rights.
o Singapore’s ROC allows for service abroad of Singapore’s legal process only if such
method is not contrary to any law of that country.
o Hence, if it were contrary, there is a facilitative provision in our ROC which sets out
an official channel for service of foreign process through the Singapore courts if the
foreign jurisdiction requests for such service to be effected.
 O 11 r 3(8)(b), ROC: Service in Malaysia or Brunei through “judicial authority” by post (or otherwise) by the Registrar to
the judicial officer of any court exercising civil jurisdiction in the area in which the person is to be served.
o If it is returned with an endorsement and affidavit of service, it shall be deemed to have been duly served.
 O 11 r 4(1), ROC: Service in any country with a Civil Procedure Convention providing for service.
 O 11 r 4(2), ROC: Service in any country without a Civil Procedure Convention providing for service.
 O 11 r 4(3), ROC: Procedure for obtaining service out of the jurisdiction through the judicial or consular authorities and
government of that country.
 O 11 r 9, ROC: Service of Subordinate Court documents (other than to Malaysia and Brunei) shall be forwarded by the
Registrar of the Subordinate Courts to the Registrar of the Supreme Court.
 NM Rothchild & Sons (S) Pte Ltd v Plaza Rakyat Sdn Bhd (1995)
o HELD: If a defendant is outside jurisdiction, but nonetheless accepts service by solicitors in Singapore, the
defendant submits to the court’s jurisdiction and may no longer apply to set aside the order granting service
out of jurisdiction.

SERVICE OF FOREIGN PROCESS IN SINGAPORE

 O 65 r 2, ROC: Where there is no Civil Procedure Convention, a letter of request is used.

 O 65 r 3, ROC: Where there is a Civil Procedure Convention.
 Fortune Hong Kong Trading Limited v Cosco Feoso (Singapore) Pte Ltd (2000)
o English writ served out of jurisdiction in Singapore by a private agent, by leaving the writ at the defendant’s
registered office – this was pursuant to s 387, Companies Act and was a method authorised by Singapore law.
 Issue was whether it was invalid because a service of a foreign process should be by way of a letter of
request under O 65 r 2, ROC if there is no subsisting Civil Procedure Convention.
o HELD: Service of foreign process in Singapore need not invariably go through official channels.
 O 65 r 2, ROC applies only where a letter of request for service is used.
 Singapore does not insist on service out of jurisdiction through official channels, hence, there is no
need for all foreign process in Singapore to be effected through the official means in O 65 r 2, ROC.

APPLICATION BY DEFENDANT WHERE WRIT IS NOT SERVED

o O 12 r 8(1), ROC: Defendant may serve a notice on plaintiff requiring him to serve it within a specified period of at least
14 days, or to discontinue the action against him.
o O 12 r 8(2), ROC: Application is by summons supported by affidavit.

APPLICATION BY DEFENDANT TO SET ASIDE WRIT FOR DISPUTE AS TO JURISDICTION

o O 12 r 7(1), ROC: Where the defendant wishes to dispute the jurisdiction of the court or seek relief for the plaintiff’s
irregularity, the defendant should still enter an appearance.
o During the period for the filing of defence, the defendant should then apply to court for relief to:
 Set aside writ for irregular service.
 Discharge an order extending validity of writ.

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 o O 12 rr 7(2) and (3), ROC: Application is by summons supported by affidavit.

APPEARANCE (DEFENDANT)

ENTERING AN APPEARANCE

 Why does a defendant enter appearance?

o Appearance is the process by which a person against whom a suit has been commenced shows his intention to
defend the suit and submits himself to the jurisdiction of the court.
 Procedure for entering appearance.
o O 12 r 1, ROC: Entry of appearance is required upon service of a writ/originating summons requiring
appearance.
o O 12 r 2, ROC: Appearance is entered by filling a Memorandum of Appearance (MOA) in Form 10.
 O 12 r 2(1), ROC: MOA is a request to the Registry to enter an appearance of the defendant.
 O 12 r 2(2), ROC: MOA must be in Form 10 and must be signed by the defendant or his solicitor.
 O 12 r 2(3), ROC: Address of the signatory must be stated on the MOA.
 O 12 r 2(6), ROC: Appearance does not constitute a waiver by the defendant on any irregularities
committed by the plaintiff.
 O 12 r 8, ROC: Defendant named in the writ but not served with the writ may serve on the plaintiff a
notice requiring the plaintiff to serve the writ on him or discontinue within 14 days.
o O 12 r 3, ROC: Appearance will be entered into the Registry’s cause book.
o O 12 r 4, ROC: Time frames for entering appearance – may apply to extend time.
 O 12 r 4, ROC: Within Singapore, 8 days.
 O 10 r 2(5), ROC: Where there is an order to serve on defendant’s agent or manager, 21 days.
 O 11 r 2(3), ROC: Outside Singapore, 21 days.
 Without appearance, no steps can be taken in the proceedings.
o Exceptions.
 O 6 r 2(1)(b), ROC: Where there is an endorsement on the writ stating that the claim is for a debt or
liquidated demand only, with a statement of the amount claim and for costs, and with a statement
that further proceedings will be stayed if the defendant pays up.
 O 13 r 8, ROC: Where the defendant applies to set aside a judgment entered in default of appearance.
 Who may enter an appearance?
o O 12 r 1(1), ROC: Entry either in person or by solicitor.
o O 12 r 1(2), ROC: Entry by solicitor if it is a body corporate.

LATE APPEARANCE

 O 12 r 5, ROC: Once judgment is entered, MOA shall not be filed except with the court’s leave.
o However, if no judgment has been entered yet, the defendant can enter a late appearance – he must
subsequently comply with the time frames set out in the ROC as if he had entered an appearance within the
requisite time, except with the court’s leave.

APPEARANCE UNDER PROTEST

 O 77 r 4(2), ROC: Where a writ is served on a person liable in a partnership, if he denies that he was the partner liable at
the material time, he should still enter an appearance.
o However, he should state in the MOA that he does so as a person served as a partner in the firm and not as a
partner at the material time.
 O 77 r 4(3)(a), ROC: Where an appearance under protest is entered, the plaintiff may apply to court to set aside the
MOA under protest on the ground that the partner was a partner at the material time.
o Alternatively, he may leave that question to be tried at a later stage.
 O 77 r 4(3)(b), ROC: Similarly, the defendant may also wish to apply to set aside the writ.

APPEARANCE GRATIS

 O 10 r 1(3), ROC: Where a writ is not duly served, but the defendant nonetheless enters an appearance, the writ is
deemed to be duly served on the date of entry of appearance.
 A person can, at any time after the issue of a writ or originating summons, waive service and enter an unconditional
appearance – hence, “gratis”.

EXPEDITED WRIT TRACK (FOR CIVIL CLAIMS COMMENCED IN THE MAGISTRATE’S COURT)
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  Applies only to fixed sum claims of and below $20,000 given their “factual and legal simplicity”.
o Provisions in the ROC apply to the expedited writ track.
o To keep pleadings concise, litigants are encouraged to use the short-form sample statement of claim in
Appendix L of the Practice Directions.
o If the defendant enters an appearance, an expedited writ conference will be called within 14 days from date of
entry.
 Expedited writ conferences.
o Parties should bring relevant materials to the expedited writ conferences.
 Failure to attend the conference will result in a dismissal of the action or judgment being granted
against the defaulting party.
 Such a judgment may be set aside/varied under O 34A r 1(4) and 6(2), ROC.
 Other judgments (made when both parties are present) must be made by filing a Registrar’s
Appeal under O 55B, ROC.
o At the first conference, the court will allow the parties the opportunity to settle the dispute.
 At any time during the expedited writ conference where the parties are in agreement to a settlement
of all or some of the matters in the dispute, the court may enter judgment to make such order to give
effect to the settlement.
 E.g. order for payment of monies, and an order for filing of the notice of discontinuance of
the claim and/or counterclaim after the receipt of money.
o If the defendant wishes to defend the claim, the court will:
 Direct the defendant to file and serve his defence.
 Make such orders or give directions as it thinks fit for the just, expeditious and economical disposal of
the cause or matter.

PLEADINGS

PLEADINGS GENERALLY

 What is a pleading?
o A pleading is a party’s written statement of the facts on which he relies for his claim or defence – i.e. a
statement of claim (SOC) or a defence, or a defence to counterclaim.
 An originating summons is not a pleading, and neither is the affidavit in support of it.
 A generally indorsed writ is not a pleading, but a statement of claim endorsed on the writ is – the
defendant would then have to file his defence.
 Further and better particulars supplied in respect of a pleading are regarded as part and parcel of the
pleading.
 Function of pleadings.
o Thorp v Holdsworth (1876)
 HELD: Object is to narrow the parties to definite issues when and diminish expense and delay.
o Palmer v Guadagni (1906)
 HELD: Pleadings held to define issues or questions in dispute between the parties, by requiring each
party to give fair and proper notice to the opponent so as to prepare for trial.
o Esso Petroleum Co Ltd v Southern Corp (1956)
 HELD: To give fair notice of the case so that opposing party may direct evidence to the issue disclosed.
Pleadings also inform the court of the precise matters in issue between the parties.
o Pleadings also contribute to a permanent record of the issues and questions raised in the action and decided,
so as to prevent future litigation upon matters already adjudicated between the litigants.

SERVICE OF PLEADINGS (TIMELINE)

 O 18 r 1, ROC: SOC to be served within 14 days from date of entry of appearance if SOC was not served with the writ,
unless:
o The SOC was already endorsed on the writ.
o The court gives leave to the contrary.
 O 18 r 2, ROC: Defence (and counterclaim (if any)) to be served within 14 days from date of entry of appearance if SOC
was served with the writ, or within 14 days from date of service of the SOC.
 O 18 r 3, ROC: Reply to defence (if any) to be served within 14 days from date of service of the defence.
o Reply is necessary if it falls within O 18 r 8, ROC – i.e. matters which must be specifically pleaded.
 O 18 r 3, ROC: If defence comes with a counterclaim, the plaintiff must serve a defence to counterclaim within 14 days
from date of service of the counterclaim.

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  O 18 r 4, ROC: No pleading subsequent to a reply or defence to counterclaim shall be served except with the court’s
leave.

CONTENTS OF PLEADINGS
 O 18 r 7(1), ROC: Statement in summary form of “material facts” – i.e. main elements of a cause of action.
o Relevant material facts must be stated briefly, succinctly, and in a strict chronological order.
o Bruce v Odham Press Ltd (1936)
 HELD: “Material” means necessary for the purpose of formulating a complete cause of action, and if
any one material statement is omitted, the statement of claim is bad.
o Waghorn v George Wimpey & Co Ltd (1970)
 HELD: Where evidence at trial establishes facts radically different from those pleaded, the action will
be dismissed.
o What should not be included?
 Pleadings cannot contain evidence (O 18 r 7(1), ROC).
 Williams v Wilcox (1838), Stuart v Gladstone (1879)
o HELD: Statement of fact should be just enough to allege it simply without setting out
the subordinate facts (beyond material facts) or the evidence sustaining the
allegation.
 Davy v Garrett (1878)
o HELD: It is wrong to set out admissions made by the opponent.
 Pleadings cannot contain law (O 18 r 7(1), ROC).
 NW Salt Co Ltd v Electrolytic Alkali Co Ltd (1913)
o HELD: Legal arguments are not to be found in pleadings.
 Re Vandervell’s Trusts (No 2) (1974)
o HELD: Legal results should not be pleaded.
 Note: However, it is permitted to raise “any point of law” (O 18 r 11, ROC) – e.g. just plead
negligence, but no need to explain what it means.
 Pleadings cannot contain arguments.
 O 18 r 7(2), ROC: A document or conversation may be briefly stated, but the effect of such documents or details of such
conversation need not be stated unless the effect/details themselves are material.
o Harris v Warre (1879)
 HELD: In an action for libel, the precise words of the document are material.
 O 18 r 7(3), ROC: Fact presumed by law to be true need not be pleaded unless the other party specifically denied it.
 Other necessary inclusions.
o O 18 r 12(1), ROC: “Necessary particulars”, applications for further and better particulars.
o O 18 r 12(1A), ROC: For “personal injuries” claim, it must be served with the medical report and statement of
special damages claimed.
o O 18 r 16, ROC: Defence of tender.
o O 18 r 17, ROC: Defence of set-off.
o O 18 r 18, ROC: Counterclaim and defence to counterclaim.
 Departure.
o O 18 r 10, ROC: A party shall not made an allegation of fact, raise new ground/claim inconsistent with a
previous pleading – but this does not prejudice the right to amend a pleading.

ANSWERING PLEADINGS
 Admission.
o O 18 r 13(1), ROC: Pleading deemed admitted unless traversed or there is a joinder of issue.
 Traverses – denial of an allegation of fact made in the SOC.
o O 18 r 13(2), ROC: Can be made by a denial or by a statement of non-admission.
o O 18 r 13(3), ROC: Every allegation of fact must be specifically traversed – a general statement of non-
admission is insufficient (i.e. a bare denial).
o O 18 r 13(4), ROC: Damages need not be specifically traversed.
o O 18 r 14(1), ROC: If there is no reply, there is an implied joinder of issue.
o O 18 r 14(2), ROC: On the close of pleadings, there is an implied joinder, or there may be express joinder.
o O 18 r 14(4), ROC: The effect of a joinder is a denial of every material fact.
 Denials.
 Confession and avoidance – avoidance or destruction the legal consequences of facts made in the SOC by alleging fresh
or additional facts to establish some legal justification or excuse, or some other grounds to avoid or escape legal
liability.
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  Objections in point of law/demurrer – every party is permitted to raise a point of law to help define or isolate an issue
or question of law on the facts as pleaded.
 Special defence.

STATEMENT OF CLAIM (SOC)

 O 18 r 15, ROC: SOC must state specifically the relief/remedy the plaintiff claims.
o SOC must also contain all facts and allegations giving rise to the cause of action.
 If plaintiff fails to serve the SOC within 14 days, the defendant may apply the court to dismiss the action or make such
other order on such terms – refer to below at Default of Pleadings.

DEFENCE

 O 18 rr 8(1) and (2), ROC: Matters which must be specifically pleaded.

o Performance, release, limitation, fraud, illegality, and anything if not specifically pleaded might:
 In the light of the allegations made, make any claim/defence of the opposite party unmaintainable.
 Take the opposite party by surprise.
 Raises issues of fact not arising out of the preceding pleadings.
o In an action for the recovery of immovable property, defendant must plead specifically every ground of
defence which he relies.
 Defendant may make counterclaim along with the defence.

FURTHER AND BETTER PARTICULAR OF PLEADINGS (F&BP)

 Function of particulars – similar to the function of pleadings.

o To inform the other side of the case that they have to meet.
o To prevent the other side from being taken by surprise at trial.
o To enable the other side to know with what evidence they ought to be prepared for trial.
 O 18 r 12(3), ROC: Court has power to order the particulars to be served to stand as part of the pleadings – i.e. the
original pleadings need not be amended.
o O 18 r 12(5), ROC: Order for F&BP usually made after the service of the defence.
 O 18 r 12(6), ROC: Requesting party should request by letter first, giving reasonable time to respond.
o Note: It is not a positive obligation, but if he does not request by letter first, costs may be ordered against him.
o O 18 r 12(7), ROC: Particulars in response to the F&BP must be served in accordance with Form 29.
o s 34(1), Supreme Court of Judicature Act: What is necessary particulars depends on the facts of each case.
o If no response or insufficient particulars are given, then apply to court by summons supported by affidavit.
 Affidavit should include:
 Explanation why F&BP was requested.
 Evidence that F&BP was requested and no/insufficient particulars are given.
 Costs.
o Note: If settled by letter, no costs.
o If the application for F&BP is granted, costs follow the event, and fixed costs ordered against the other party.
 It will be ordered and it may be apportioned according to how much particulars the court orders.
o If not granted, costs ordered against the applicant.
 Voluntary particulars can be offered – e.g. if party feels that material facts/particulars are missing from his own
pleading.
o Process similar to F&BP.
o Leave of court is also required (as with F&BP) (Multi-Pak v Intraco (1992)).
 Appeals to the Court of Appeal– see s 34(1), Supreme Court of Judicature Act.
o No right of appeal.

AMENDMENT OF PLEADINGS

 Amendment without leave.

o O 20 r 1, ROC: Writ may be amended once without leave before the pleadings are closed.
 However, court’s leave required if it falls within these 3 scenarios:
 Adding, altering, or substituting a party.
 Adding or substituting a new cause of action.
 Amending a SOC endorsed on the writ.
 However, amendment of the writ is still allowed without leave if the writ has not been served on any
party.
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 o O 20 r 3, ROC: Pleadings may be amended without leave once before the pleadings are closed but he must
also serve the amended pleadings.
 Amendment with leave – both amendments to writ and pleadings.
o O 20 r 5(1), ROC: May apply to amend at any stage on such terms as to costs and as may be just.
o O 20 r 5(2), ROC: May apply to amend even after limitation period has passed – but this provision is only for O
20 rr 5(3), (4) and (5), ROC.
 Abdul Gaffar v Chua Kwang Yong (1994)
 HELD: Court can grant leave to amend after limitation only if the cause of action comes
within the 3 situations (i.e. O 20 rr 5(3), (4) and (5), ROC) – there is no general power to grant
leave to do so.
o O 20 r 5(3), ROC: Amendment to correct name of the party allowed notwithstanding that the effect is to
substitute a new party if the court is satisfied that the mistake was not misleading or caused reasonable doubt
as to the identity of the person.
 Lim Yong Swan v Lim Jee Tee (1993)
 HELD: Despite the nominal defect in form, the litigant is known in fact and in substance to
the parties – it was a mere correction to the nomenclature.
o O 20 r 5(4), ROC: Altering the capacity in which he is making a claim.
o O 20 r 5(5), ROC: Amendment to add or substitute a new cause of action allowed if the new cause of action
arises out of the same (or substantially the same) facts.
 Lim Yong Swan v Lim Jee Tee (1993)
 HELD: The sub-rule recognises the existence of a set of facts for which relief is claimed to
admit the addition or even substitution of a “new” cause of action after the expiry of the
limitation period, as long as there is sufficient overlap of facts.
 Hence, if adding a counterclaim (not arising out of the same facts), no guarantee it will be allowed
(see Murakami Takako v Wiryadi Louise Maria (2007), where court was prepared to exercise
discretion to allow amendment to add counterclaim after time bar, but was bound by this
requirement nonetheless).
o Guiding principle when granting leave for amendment.
 Wright Norman v OCBC (1994)
 HELD: Amendments ought to be allowed if they would enable the real question of issue in
controversy between the parties to be determined, but the other party should not be
prejudiced in a way that cannot be compensated by costs.
 Amendments must be identified – see Practice Direction No 3 of 2006.
o E.g. in different colours – black, then red, green, blue and brown.
 Appeals to the Court of Appeal – see s 34(1), Supreme Court of Judicature Act.
o If application for amendment is granted, no right of appeal.
 However, there is right of appeal in the situations listed in the Fourth Schedule, Supreme Court of
Judicature Act – e.g. if the amendment falls after the limitation period + any of the 3 situations.
 Note: However, even without right of appeal to the Court of Appeal, there can be appeals elsewhere.
 O 56 r 1(1), ROC for appeals from Registrar  District Judge in Chamber.
 O 55, ROC for appeals from District Judge in Chamber  High Court.
 O 55D, ROC for appeals from Subordinate Court  High Court.
o If not granted, right of appeal only with leave.
 Costs.
o If application for amendment is granted, costs follow the event, and fixed costs ordered against the other
party.
o If not granted, costs ordered against the applicant.

DEFAULT OF PLEADINGS

 O 19 r 1, ROC: Default in serving SOC.

o Defendant may apply to court for an order to dismiss the action.
 Application by summons supported by affidavit.
 O 19 rr 2 to 7, ROC: Default in serving defence.
o Plaintiff may act to enter judgment against the defendant.
o Refer entirely to Chapter 4 – Disposal of Actions without Trial.
 O 19 r 8, ROC: Default in serving defence to counterclaim.
o Similar rules apply – simply treat the counterclaim as SOC and defence to counterclaim as defence.

CLOSE OF PLEADINGS
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  O 18 r 20(1), ROC: Pleadings are deemed to be closed:
o (a) At the expiration of 14 days after service of the reply, or if there is no reply but only a defence to the
counterclaim, after service of the defence to the counterclaim.
o (b) If neither reply nor defence to counterclaim is served, at the expiration of 14 days after service of the
defence.
 O 18 r 20(2), ROC: This is notwithstanding that there may be a pending request for F&BP.
o F&BP is allowed at any time because it is important as evidence at trial.
o United Engineers (Singapore) Pte Ltd v Lee Lip Hiong (2004)
 HELD: An amendment to a pleading does not reopen a deemed closure of pleadings.

TRIAL WITHOUT PLEADINGS

 Trial without pleadings (O 18 r 22, ROC) is very rare.

o Court may direct parties to prepare a statement of issues, usually used where it is so urgent where the trial
cannot go ahead with pleadings.

THIRD PARTY (TP) PROCEDURE

 Rationale of O 16, ROC – if the defendant is of the view that another party is liable to indemnify it and/or otherwise
contribute towards the plaintiff’s claim, the defendant may apply to add that party as a TP.
o Barclays Bank v Tom (1923)
 HELD: To prevent multiplicity of actions and to enable the court to adjudicate on disputes between all
parties to them in one action.
o Benecke v Frost (1876)
 HELD: To prevent the same question from being tried twice with possibly different results.
 Independent nature of TP proceedings.
o O 16 r 3(3), ROC: TP notice is to be treated as a writ and the proceeding will begin as an action.
o O 6 r 3(2), ROC: TP notice deemed issued if there is a serial number, is signed, sealed and dated upon issuance.
o O 10 r 1(1), ROC: TP notice must be personally served.
 Except O 10 r 1(4), ROC – the Memorandum of Service.
o O 11, ROC: Rules governing service out of jurisdiction will apply if service is out of jurisdiction.
o O 12, ROC: Rules governing appearance to be entered will apply.
o Stott v West Yorkshire Road Car Co Ltd (1971)
 HELD: If the main action is settled between the plaintiff and the defendant, the TP proceedings by the
defendant against a third party can still proceed in the same way as if they had been started by a
separate action – it is not necessary for a new action to be brought.
o Paragraphs 16/1/23, White Book:
 TP can counterclaim.
 Defendant and TP can interrogate each other.
 TP directions on discovery may be given.
 TP may ask for an issue to be tried between himself and the plaintiff in the same proceedings.
 3 grounds for issuing a TP notice.
o [1] O 16 r 1(1)(a), ROC: If the defendant is seeking any contribution (partial indemnity) or indemnity from a TP.
 Right to contribution usually arises between joint debtors.
 Right to indemnity may arise by contract, or by implication of law (e.g. where act is done by one
person at the request of another).
o [2] O 16 r 1(1)(b), ROC: If it is substantially the same as some relief or remedy as claimed by the plaintiff.
 Paragraph 16/1/12, White Book: No need for the facts of the TP proceeding to be exactly the same,
but just similar such that it needs to be determined who should ultimately bear the loss alleged to
have been suffered by the plaintiff.
o [3] O 16 r 1(1)(c), ROC: If there is any question/issue relating to/connected with the original subject matter of
the action that should be determined not only as between the plaintiff and defendant, but also as between
either or both of them and a person not already a party to the action.
 Leave of court, and how to obtain leave.
o O 16 r 1(2), ROC: Whether leave to issue TP notice is required?
 A defendant to an action may not issue a TP notice without the leave of the court unless the action
was begun by writ and he issues the notice before serving his defence on the plaintiff.
 Also, O 73 r 8, ROC: Leave required if intended TP is the government.
o O 16 r 2(1), ROC: Leave is obtained by ex parte summons (in Form 18) supported by affidavit.

15
 o O 16 r 2(2), ROC: Matters that must be contained in affidavit in support – nature of the plaintiff’s claims, stage
of the proceedings, nature of the defendant’s claims, name and address of the TP, etc.
o O 16 r 6, ROC: TP proceedings can be set aside at any stage by the court.
o O 16 r 3(2), ROC: In addition to notice, a copy of the writ or originating summons and pleadings must be served
together.
 TP becomes party to action from/upon time of service of notice – see O 16 r 1(3), ROC.
o TP must enter appearance – Memorandum of Appearance by TP (Form 19).
o TP directions must be applied by the defendant (who is the plaintiff in the TP proceeding).
 O 16 r 4(1), ROC: Defendant must apply for direction if appearance by TP is entered.
 O 16 r 4(2), ROC: If defendant fails to apply for directions, TP may apply for directions not earlier than
7 days after entering appearance.
 Note: This effectively fixes the time within which the defendant should apply for directions if
they do not wish the TP to do so instead.
 As an alternative to asking for directions, TP may also apply to set aside the TP notice – rare.
 Court may make the following orders under O 16 rr 4(3) or (4), ROC under the application for
directions:
 Dismiss the application for directions and terminate the TP proceedings – rare.
 Where liability of the TP to the defendant is established, order appropriate judgment to be
entered for the defendant against the TP.
 Order any claim, question or issue to be tried.
 Give the TP leave to appear at the trial and take part at the trial.
 Generally, the court can also make such orders or give such directions as may appear proper
for having rights and liabilities of the parties most conveniently determined and enforced.
 Consequences of default of TP.
o O 16 r 5(1), ROC: Default by TP in entering appearance or serving defence – deemed to admit any claim stated
in the TP notice and be bound by any judgment.
o O 16 r 5(2), ROC: Default by TP or defendant in serving pleadings – party not in default may apply for summons
(supported by affidavit) to enter judgment or for any order necessary to do justice.
o O 16 r 5(3), ROC: Court can set aside or vary judgment entered in O 16 rr 5(1) and (2), ROC above at any time.
o O 16 r 7, ROC: Non-default judgment may be entered against third party at or after trial of the main action.
 Fourth of fifth party notice.
o O 16 r 9(1), ROC: TP may issue 4th (issued by the TP) or 5th party notice (issued by the 4th party).
o Leave not required if it is a writ action and the TP issues the 4 th or 5th party notice before expiration of 14 days
after the time limited for appearing to the TP notice issued against him.
 Costs.
o Costs in the cause in the TP proceedings will be granted – i.e. depends on who wins.
 Note: But in practice, it’s only the defendant’s costs in the cause if the defendant wins – because even
if the TP wins, it just means that the TP is not part of the proceedings (how to get costs)?

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4. DISPOSAL OF ACTIONS WITHOUT
TRIAL
JUDGMENTS IN DEFAULT OF APPEARANCE: O 13, ROC
 Under O 13, ROC, if the defendant fails to enter an appearance, the plaintiff may enter a judgment against him.
 Effect of default of appearance.
o By not entering an appearance, the defendant admits all allegations in the SOC.
o Exception – O 76 r 8, ROC (a person under disability).
 Nature of judgement in default.
o Oppenheim v Mahomed (1922)
 HELD: A judgment in default is not a judgment on the merits.
 Types of judgments in default of appearance.
o O 13 r 1, ROC: In a claim for liquidated demand only, final judgment.
o O 13 r 2, ROC: In a claim for unliquidated damages only, interlocutory judgment.
o O 13 r 3, ROC: In a claim for detention of movable property only, interlocutory judgment.
o O 13 r 4, ROC: In a claim for possession of immovable property only, judgment.
o O 13 r 5, ROC: Mixed claims, “enter such judgment”.
o O 13 r 6, ROC: In a claim not mentioned in O 13 rr 1 – 4, ROC, the plaintiff to proceed with the action as if the
defendant had entered judgment, and then “apply by summons to enter judgment”.
 Procedure – documents to be prepared/filed.
o Memorandum of Service to be filed under O 10 r 1(4), ROC.
o Draft judgment in Form 79.
o Notes of Cost in Appendix 2 of O 59, ROC.
o Certificate of Non-Appearance in Form 11.
o Either affidavit of service, or production of writ indorsed by the defendant’s solicitor.
 Setting aside.q
o O 13 r 8, ROC: Judgment made under O 13, ROC may be varied or set aside if the court thinks it just.
 Irregular judgment may be set aside for procedural irregularity (European Asian Bank v Chia Ngee
Thuang (1995)), but court retain unfettered discretion to consider whether there was an egregious
breach of the rules of procedural justice.
 Regular judgment may be set aside on merit of defence (Mecurine v Canberra Development (2007)).
 Defendant must show that there were triable issues of fact/law + he should be given an
opportunity to defend.
 The longer the delay, the more cogent the merits of application to set aside.
o Appeals to the Court of Appeal– see s 34(1), Supreme Court of Judicature Act.
 No right of appeal if setting aside unconditionally.
 No right of appeal if setting aside conditionally – but defendant may appeal the conditions attached.
 Costs.
o If application is granted, costs follow the event, and fixed costs ordered against the other party.
 Note: For judgments under O 13 rr 1, 4 and 5, ROC: Costs will be scaled as per O 59, ROC – refer to
Appendix 2 of O 59, ROC.
o If not granted, costs ordered against the applicant.

JUDGMENTS IN DEFAULT OF DEFENCE: O 19, ROC

 Under O 19, ROC:
o [1] If a defendant, having entered appearance, fails to file a defence, the plaintiff may enter default judgment
against him.
o [2] If a plaintiff fails to file a defence to the defendant’s counter-claim, the defendant may enter default
judgment against him.
 Types of judgment in default of defence.
o O 19 r 2(1), ROC: In a claim for liquidated demand only, final judgment.
o O 19 r 3, ROC: In a claim for unliquidated damages only, interlocutory judgment.
o O 19 r 4, ROC: In a claim for detention of movable property only, interlocutory judgment.
o O 19 r 5, ROC: In a claim for possession of immovable property only, judgment.
o O 19 r 6, ROC: Mixed claims, “enter such judgment”.

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 o O 19 r 7(1), ROC: In a claim not mentioned in O 19 rr 2(1) – 5, ROC, the plaintiff to proceed with the action as if
the defendant had entered judgment, and then “apply by summons to enter judgment”.
 Procedure – documents to be prepared/filed.
o Memorandum of Service to be filed under O 10 r 1(4), ROC.
o Draft judgment in Form 79.
o Notes of Cost in Appendix 2 of O 59, ROC.
 Setting aside.
o O 19 r 9, ROC: Judgment made under O 19 may be varied or set aside if the court thinks it just.
 Irregular judgment may be set aside for procedural irregularity (European Asian Bank v Chia Ngee
Thuang (1995)), but court retain unfettered discretion to consider whether there was an egregious
breach of the rules of procedural justice.
 Regular judgment may be set aside on merit of defence (Mecurine v Canberra Development (2007)).
 Defendant must show that there were triable issues of fact/law + he should be given an
opportunity to defend.
 The longer the delay, the more cogent the merits of application to set aside.
o Appeals to the Court of Appeal– see s 34(1), Supreme Court of Judicature Act.
 No right of appeal if setting aside unconditionally.
 No right of appeal if setting aside conditionally – but defendant may appeal the conditions attached.
 Note: Entering of default judgment against the government is not available (AG v Phang Fook Seng (1999)).
 Costs.
o
o If application is granted, costs follow the event, and fixed costs ordered against the other party.
 Note: For judgments under O 19 rr 2(1), 4 and 5, ROC: Costs will be scaled as per O 59, ROC – refer to
Appendix 2 of O 59, ROC.
o If not granted, costs ordered against the applicant.

SUMMARY JUDGMENTS: O 14, ROC

 Under O 14 r 1, ROC, if it is clear that the defendant has no real defence to a claim, the plaintiff may apply to court for
summary judgment against the defendant.
o Associated Development v Gerald Loong (2009)
 HELD: After the plaintiff shows he has prima facie case for judgment, the burden shifts to the
defendant who has to establish that there is a fair or reasonable probability that he has a real or bona
fide defence.
 Scope of O 14 r 1, ROC.
o Applicable to all claims.
 Requirements.
o SOC must be served and it must be complete and correct.
 Note: If SOC is defective in substance, application for summary judgment will be dismissed (Sheba
Gold Mining Co v Trubshawe (1892)).
o Application must be filed within 28 days after the pleadings are deemed closed.
 Obegi Melissa v Vestwin Trading (2008)
 HELD: 28 days deadline is extendable by the court in its discretion under the Supreme Court
of Judicature Act – mere existence of a time limit in the ROC cannot be absolute and
immutable, and extension can save the parties time and expense of conducting a trial.
 Procedure.
o O 14 r 2(1), ROC: Summons supported by affidavit containing all facts and necessary evidence.
o O 14 r 2(2), ROC: Summons and affidavits must be served on the defendant 3 days from the date of filing.
o Defendant’s show of cause.
 To resist an application for summary judgment, the defendant must show that the dispute concerns a
triable issue, or that there is some other reason for trial.
 O 14 rr 2(3) and (4), ROC: Defendant may show cause by filing and serving an affidavit on the plaintiff
within 14 days after service of the plaintiff’s summons and affidavit.
o Plaintiffs reply.
 O 14 r 2(5), ROC: Plaintiff may reply by filing and serving an affidavit on the defendant within 14 days
after service of the defendant’s affidavit.
 Evidence.
o O 14 r 2(6), ROC: No further evidence will be accepted without the leave of court.
 Court’s role.
o Not to go into the merits.
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  Complete defence need not be shown (Jaya Kumar v Subramaniam Mohana Krishnan (1987)).
 Only need to consider whether there are triable issues of fact (European Asian Bank Ltd v Punjabi Sind
Bank (1983)).
 Orders the court can make.
o [1] Dismiss the application with costs – O 14 r 7(1), ROC.
 When the SOC is not complete and correct.
 When the plaintiff knew that the defendant relied on a contention which would entitle him to
unconditional leave to defend.
 Costs.
 If application is dismissed, fixed costs to the defendant.
o [2] Judgment – O 14 r 3(1), ROC.
 When no triable issues of fact or bona fide defence is raised.
 When counterclaim is foreign to the plaintiff’s claim which is admitted, thereby disentitling a stay on
the judgment so entered.
 Where liability is clear but damages have to be assed under O 37, ROC, judgment can still be given.
 Costs.
 If application is granted and summary judgment is entered for the plaintiff, costs follow the
event, scaled as per O 59, ROC – refer to Appendix 2 of O 59, ROC.
o [3] Judgment with stay – O 14 r 3(2), ROC.
 When there is clearly no defence to the plaintiff’s claim, but the defendant raises a plausible
counterclaim.
 Costs.
 If application is granted and summary judgment is entered for the plaintiff, costs follow the
event, scaled as per O 59, ROC – refer to Appendix 2 of O 59, ROC.
o [4] Unconditional leave to defend – O 14 rr 3(1) and 4(1), ROC.
 When triable issue of fact has been raised.
 When because of “some other reasons” there ought to be a trial (even if defendant may not be able
to pin point any precise issue).
 When defendant sets up a bona fide counterclaim arising out of the same subject matter of the action
and connected with the grounds of the defence (even if defendant admits the whole of the claim).
 Appeals to the Court of Appeal– see s 34(1), Supreme Court of Judicature Act.
 No right of appeal.
 Costs.
 If unconditional leave to defend is granted, usually costs in the cause to the defendant.
 However, an amendment to O 14 r 7(3), ROC in 2010 provides that the court may make such
order as to costs against the plaintiff as it considers fit.
o [5] Conditional leave to defend – O 14 r 4(1), ROC.
 When court is very nearly prepared to give judgment for the plaintiff.
 When defence is shadowy or a sham defence.
 Appeals to the Court of Appeal– see s 34(1), Supreme Court of Judicature Act.
 No right of appeal – but defendant may appeal the conditions attached.
 Costs.
 If conditional leave to defend is granted,
o And condition is satisfied, costs in the cause to the defendant.
o But condition not satisfied, summary judgment is entered for the plaintiff, and costs
follow the event, scaled as per O 59, ROC – refer to Appendix 2 of O 59, ROC.
 Note: O 14 r 8, ROC: Judgment for part of the claim is perfectly acceptable.
 Costs.
o Refer to the individual scenarios above.

DISPOSAL OF CASE ON POINT OF LAW: O 14 R 12, ROC

 Under O 14 r 12, ROC, the court may, upon the application of a party or by its own motion, determine any question of
law or construction of any document where it appears that:
o (a) Such questions is suitable for determination without a full trial.
o (b) Such determinations will fully determine the entire cause of matter/claim/issue.
 Procedure.
o Application by summons supported by affidavit, when the pleadings are closed.
o Defendant may appeal.
 Costs.
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 o If application is granted, costs follow the event, scaled as per O 59, ROC – refer to Appendix 2 of O 59, ROC.
o If not granted, costs ordered against the applicant.

STRIKING OUT OF PLEADINGS AND ACTIONS: O 18 R 19, ROC

 Under O 18 r 19, ROC, the court has the power to strike out pleadings and actions.
o The power will be exercised sparingly, only in “plain and obvious cases” or where a claim or answer is
“obviously unsustainable”.
 There should not be a minute and protracted examination of the documents and facts to see whether
there is a cause of action.
 It is also not permissible to try the action on affidavits when facts and issues are in dispute.
o Note: This in in addition to the court’s inherent jurisdiction.
 In addition to O 18 r 19, ROC, the court has inherent jurisdiction to stay or dismiss action on the
ground that the pleading is frivolous, vexatious and/or an abuse of process.
 In exercising such power, all facts can be gone into, and affidavits as to facts are admissible.
 The inherent jurisdiction will not be exercised except with great circumspection and unless it is
perfectly clear that the plea cannot succeed.
 4 grounds for the application:
o O 18 r 19(1)(a), ROC: “It discloses no reasonable cause of action or defence”.
o O 18 r 19(1)(a), ROC: “It is scandalous (i.e. irrelevant or where there are unnecessary details), frivolous or
vexatious (e.g. time-barred or just to get costs)”.
o O 18 r 19(1)(a), ROC: “It may prejudice, embarrass, or delay the fair trial of the action”.
o O 18 r 19(1)(a), ROC: “It is otherwise an abuse of the process of the court”.
 Procedure.
o Application must be made promptly.
 May be “at any stage of the proceedings” – no need to wait for pleadings to be closed, but usually
before pleadings are deemed closed.
 After set-down, the application may be refused.
o Summons is to be supported by affidavit unless the ground is O 18 r 19(1)(a), ROC (i.e. it discloses no
reasonable cause of action or defence) because the basis of the application should be clear on the face of it.
 Hence, no evidence is admissible to support that ground.
 Orders the court can make:
o Order the action to be struck out.
o Have the pleadings amended – i.e. it can be saved!
 The court will allow an amendment if some material averment is missing.
 However, it will refuse amendment when the intended amendment will not cure the defect.
o Stay the action.
o Dismiss the action.
o Enter a judgment.
 Appeals to the Court of Appeal – see s 34(1), Supreme Court of Judicature Act.
o If struck out, automatic right of appeal.
o If not struck out, no right of appeal.
 Costs.
o If struck out, costs follow the event, and costs will be awarded to the applicant fixed at a particular amount.
o If not struck out, costs ordered against the applicant.

DISCONTINUANCE AND WITHDRAWAL: O 21, ROC

 Either party may withdraw or discontinue his action/defence/counterclaim.
 Withdrawal of appearance.
o O 21 r 1, ROC: A party who has entered appearance may withdraw the appearance at any time with the leave
of court – however, this is usually used for appearance entered by mistake/accident.
 Discontinuance of action.
o Without leave.
 O 21 r 2, ROC: A party can discontinue an action begun by writ without leave of court if it is
discontinued not later than 14 days after service of defence.
 O 21 r 2(2)(a), ROC: A defendant can withdraw defence at any time without leave.
 Party seeking to discontinue should file Form 30 with costs implications under O 59 r 10(1), ROC read
with O 59 r 3, ROC.

20
  O 21 r 2(4), ROC: Parties can produce a copy of the written consent of all parties to discontinue the
action to the Registrar at any time before trial.
o With leave – where it does not fall under O 21 r 2, ROC (e.g. other originating process), leave is required.
 O 21 r 3(2), ROC: Application is by summons.
 Court hearing such summons will make an order “on such terms as to costs, the bringing of a
subsequent action or otherwise as it thinks fit”.
 Deemed discontinuance.
o O 21 rr 2(5) and (6), ROC: Action is deemed to be discontinued if neither party takes any step in the proceeding
(with the usual costs implications under O 59 r 10(1)(b), ROC).
 Exception – where action has been stayed by the court.
 However, affected parties can apply to extend time.
 Jagbir Singh s/o Baldhiraj Singh v Lim Keh Thye (1994)
 HELD: Court held that notice of change of solicitors the defendants filed was a step.
 Miscellaneous.
o O 21 r 4, ROC: Fact of discontinuance is no defence to subsequent action unless the court otherwise orders.
o O 21 r 5, ROC: Stay of subsequent proceedings if costs of first action not paid.
o O 21 r 6, ROC: All summonses need leave of court to be withdrawn.
 Costs.
o O 21 r 3, ROC: Court may order costs against party discontinuing.
o O 59 r 10(1)(b), ROC: After 4 days from payment out (unless the court orders otherwise), the recipient may tax
his costs incurred to the time of receipt of the notice of payment.
 48 hours after taxation, the other party may sign judgment for his taxed costs.

PAYMENT INTO COURT: O 22, ROC

 Under O 22, ROC, the defendant may pay into court.
o It is an offer to dispose of the claim on terms, and aims to show the party’s genuine intent to settle.
o However, payment into court should not be pleaded.
o Also, it must not be communicated to the court until liability and damages are decided.
 Procedure.
o Defendant may pay into court at any time after he has entered an appearance.
o See O 22 rr 1 – 8, ROC.
 Defendant to give notice in Form 31 to the plaintiff (and every other defendants if any).
 Within 3 days after receiving the notice, plaintiff must send defendant a written acknowledgement of
his receipt.
 Costs.
o O 59 rr 3 and 10(2), ROC: After 4 days from payment out (unless the court orders otherwise), the plaintiff may
tax his costs incurred to the time of receipt of the notice of payment.
 48 hours after taxation, the plaintiff may sign judgment for his taxed costs.

OFFER TO SETTLE: O 22A, ROC

 Under O 22A, ROC, a party to any proceeding may serve on any other party an offer to settle any one or more of the
claims in the proceedings on the terms specified in the offer to settle.
 Procedure.
o O 22A r 1, ROC: Offer to settle shall be in Form 33.
o O 22A r 2, ROC: An offer to settle may be made at any time before the court disposes of the matter.
 O 22A r 3(3), ROC: An offer may be withdrawn using Form 34.
o O 22A r 5, ROC: An offer should not be disclosed.
o O 22A r 6, ROC: Acceptance of the offer is in Form 35.
 O 22A r 3(1), ROC: An offer must be open for acceptance for not less than 14 days after it is served. If
an offer is made less than 14 days before the hearing of the matter, it shall remain open for not less
than 14 days unless the matter is disposed of in the meantime.
 O 22A r 3(5), ROC: Where an offer does not specify a time for acceptance, it may be accepted at any
time before the court disposes of the matter.
 O 22A r 3(2), ROC: An offer that does not specify a time for acceptance may be withdrawn at
any time after the expiry of 14 days from service on the other party, provided that at least 1
day prior notice is given.
o An offer to settle with a party under disability must be approved by the court under O 76 r 10, ROC.
 Costs – there are cost implications to not accepting a good offer to settle.
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 o If a good offer made is not accepted, and the judgement in favour of the offeror turns out to be better than the
offer is made, then the offeror gets costs on the standard basis up to the date the offer was served and on an
indemnity basis thereafter.
 Note: If it is a bad offer, normal costs stands and the offer to settle regime does not step in.
o Other instances include O 22A rr 9(1) and (3), ROC.
o Court retains discretion to order costs as it sees fit.
 CCM Industrial Pte Ltd Uniquetech Pte Ltd (2008)
 HELD: O 22A r 9(5), ROC vests the court with full power to determine by whom and to what
extent any costs are to be paid, so long as it is exercised without prejudice to O 22A rr 9(1) –
(3), ROC.

JUDGMENTS ON ADMISSION: O 27, ROC

 O 27 r 1, ROC: A party may give notice by his pleading or in writing that he admits the truth of whole/part of the case.
 O 27 r 2(1), ROC: A party may not later than 14 days after the matter is set down for trial serve on any other party a
notice requiring him to admit the facts specified in the notice.
 O 27 r 3, ROC: Where admissions of fact are made by any party, any other party may apply to the court for such
judgment on the admissions.
 A person applying for such a judgment must have a clear case.
o Judgment of admissions may be obtained against 1 or several defendants.
o Judgment under O 27, ROC can be entered only where the defendant has made admissions of fact (not law).
 Note: O 27, ROC can also apply to the defendant against the plaintiff upon the plaintiff’s admissions in pleadings.
 Costs.
o If application for judgment on admission is granted, costs follow the event, and costs ordered against the other
party.
o If not granted, costs ordered against the applicant.

CONTROL (CONSOLIDATION) OF PROCEEDINGS BY COURT: O 4 R 1, ROC

 Rationale of O 4 r 1, ROC.
o Main purpose is to save costs and time (Payne v British Time Recorder Co (1921)).
 O 4 r 1, ROC: Where 2 or more matters are pending, if the court thinks that:
o (a) Some common questions of law/fact arises in both or all of them; or
o (b) The rights to relief claimed arise from the same series of transaction; or
o (c) For some reason, it is desirable to make an order under this rule,
o Then, the court may order that the matters be tried at the same time or immediately after one another or
order any of them to be stayed until determination of any other of them.
 Consequences.
o O 4 r 1(2), ROC: Title changed.
o O 4 r 1(3), ROC: Documents transferred to other files.
 Can consolidate.
o Horwood v British Statement Publishing Co Ltd (1929)
 HELD: Where plaintiffs are the same and the defendants are the same, or where the plaintiffs or
defendants or all are different.
 Cannot consolidate.
o Leevis v Daily Telegraph (No 2) (1964)
 HELD: 2 actions cannot be consolidated where the plaintiff in 1 action is the same person as the
defendant in another action, unless 1 action can be ordered to stand as counterclaim or TP
proceeding in other.
 Generally impossible to consolidate actions in which different solicitors have been instructed to
represent different plaintiffs.
o Goh Chok Tong v Jeyeretnam Joshua Benjamin (1997)
 HELD: No consolidation where there are a large number of co-plaintiffs and all of them are separately
represented.
 Costs.
o Costs in the cause.

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5. PRE-TRIAL PROCEDURES
SECURITY FOR COSTS
 Security for costs is aimed to ensure that the defendant will get his party-and-party costs from the plaintiff.
 Under O 23 r 3, ROC, the court is empowered to require security to be given for the costs of any proceedings.

OVERRIDING CONSIDERATION

 Overriding consideration of the court’s in ordering a security for costs.

o O 23 r 1(1), ROC: Discretionary, if “having regard to all circumstances of the case, court thinks it just to do so”.
o Crozat v Brodgen (1894)
 HELD: If there is a strong prima facie presumption that the defendant will fail in his defence to the
action, the court may refuse him any security for costs. On the facts, investigation of the merits of the
case was justified only because the plaintiff demonstrated a very high probability of success.
o Sir Lindsay Parkinson & Co Ltd v Triplan Ltd (1973)
 HELD: The likelihood of the plaintiff succeeding is a major matter for consideration.
 However, not every application for security for costs should be made the occasion for a
detailed examination of the merits of the case.
o Porzelack KG v Porzelack (UK) Ltd (1987)
 HELD: Parties should not attempt to go into the merit of the case unless it can be clearly
demonstrated that there is a high degree of probability of success or failure.
o Other factors includes – ease of enforcement of judgment otherwise (e.g. consider whether there are
reciprocate enforcement agreement with the foreign jurisdiction), impecuniosity of the other party (e.g. is he
poor? It may mean that he may be unable to pay, but if he’s already poor, an order for security of costs may
stifle a legitimate claim), etc.

4 GROUNDS TO SUPPORT AN APPLICATION FOR SECURITY FOR COSTS

 [1] O 23 r 1(1)(a), ROC: That the plaintiff is ordinarily out of jurisdiction.

o Lek Swee Hua v American Express Int Inc (1991)
 HELD: Question was whether the plaintiff was ordinarily resident in Singapore.
 On the facts, the status of a permanent resident is not conclusive or convincing.
o Tjong Very Sumito v Chan Sing En (2011)
 Issue was whether a person could be ordinarily resident in more than 1 place?
 HELD: Court has jurisdiction to order security for costs on a plaintiff who was simultaneously
ordinarily resident in Singapore as well as another jurisdiction.
 [2] O 23 r 1(1)(b), ROC: That the plaintiff is a nominal plaintiff suing for the benefit of some other person + and that
there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so.
o Semler v Murphy (1968)
 HELD: A plaintiff who has assigned the benefit of an action may be a nominal plaintiff.
o Lloyd v Hathem Station Brick Co (1901)
 HELD: An insolvent plaintiff who assigns his estate to the trustee for the benefit of his creditors is a
nominal plaintiff and must give security.
o Fellows v Barett (1836)
 HELD: Friend of person under disability not a nominal plaintiff and cannot be compelled to give
security.
o Rainbow v Kittoe (1916)
 HELD: Ad administrator suing in representative capacity is not a nominal plaintiff.
 [3] O 23 r 1(1)(c), ROC: That the plaintiff’s address is not/wrongly stated in the writ or other originating process.
o However, if the plaintiff’s misstatement/failure to state his address is innocent and without the intention to
deceive, the court will not order security to be furnished.
 Chellew v Brown (1923)
 HELD: A master mariner with no permanent home gave his sister’s address. It was held that
there was no intention to deceive the court.
 [4] O 23 r 1(1)(d), ROC: That the plaintiff has changed his address during the course of the proceeding with a view to
evading the consequences of litigation.
o Knight v Ponsonby (1925)

23
  HELD: Security not ordered from a plaintiff who has indorsed a sufficient address on his writ, removed
that address afterwards, and is then subsequently prevented by poverty and adversity from acquiring
a fresh permanent address.

OTHER GROUNDS

 s 388(1), Companies Act: Security required where corporation is plaintiff and there is reason to believe that the
company will be unable to pay costs of a successful defendant.
 s 36(1), Societies Act: Security required where society or officer is plaintiff and there is reason to believe that the
society or officer will be unable to pay costs of a successful defendant.
 Difference between these vs. O 23 r 3, ROC..
o Creative Elegance (M) Sdn Bhd v Puay Kim Seng (1999)
 HELD: Difference lies in the condition to be satisfied before the respective provisions can be invoked.
 However, once the court’s discretion is invoked (whether under O 23 r 3, ROC or s 388(1),
Companies Act), the same principles are applicable (Creative Elegance (M) Sdn Bhd v Puay
Kim Seng (1999)).
 The test to be used when considering whether security for costs should be granted is whether it is just
to order the plaintiff to provide security for costs and the extent of such security after considering all
the circumstances.
 It is incorrect to say that the test for O 23 r 3, ROC is whether the plaintiff has a high
probability of success, while the test for s 388(1), Companies Act is whether the plaintiff has
a bona fide claim with reasonable prospect of success – neither of these are a complete test.
 The courts has to examine all other circumstances and come to a conclusion as to whether it
is just that an order for security for costs should/should not be granted.
 On the facts, the court considered [1] the plaintiff’s prospects of success, [2] other circumstances (in
view of the prevailing economic condition, there was no possibility for security for costs to be granted
by the appellant (it would stifle their claim otherwise)), and [3] that the appellants were still carrying
on business in Malaysia (hence, order for payment of costs could still be enforced in Malaysia).
 Therefore, it set aside the order for security for costs.

PROCEDURE

 O 23 r 1, ROC: File summons in the action supported by an affidavit.

o Affidavit should include:
 How much should be secured?
 How long should the security be valid (i.e. what stage of the proceedings).
o Can be done at any stage, but the sooner the better.
 O 23 r 2, ROC: The order will also deal with “manner, at such time, and on such terms”.
o Manner – commonly includes:
 Furnish bankers’ guarantee to the satisfaction of the defendant.
 Payment into court.
 Solicitors’ undertaking.
o At such time – usually 14 – 28 days.
o On such terms – common pre-emptory orders usually given after 1 default:
 Failing which, the action is slayed.
 Failing which, the action is dismissed – applicant can apply to strike out the action.
 Appeals to the Court of Appeal– see s 34(1), Supreme Court of Judicature Act.
o If application for security for costs is granted, right of appeal only with leave.
o If not granted, no right of appeal.
 Costs.
o If application for security for costs is granted, [1] costs follow the event, and costs ordered against the other
party, or [2] it could also be the plaintiff’s costs in the cause.
 It will be ordered and it may be apportioned according to how much security the court orders.
o If not granted, costs ordered against the applicant.

APPLICABILITY TO NON-PARTY AND COUNTERCLAIMS

 O 23 r 1(3), ROC: Applicability to non-party.

o Where a non-party (i.e. not party to the action) has assigned the right to the claim to the plaintiff with a view
to avoiding his liability for costs; or

24
 o Where a non-party has contributed or agreed to contribute to the plaintiff’s costs in return for a share of any
money/property the plaintiff may recover,
o Then the court may order a non-party to give security for costs if the court thinks it just to do so after having
regard to all the circumstances of the case.
 O 23 r 1(6), ROC: Applicability to counterclaims – i.e. just invert the plaintiff and defendant.

DISCOVERY
 What is discovery?
o Discovery is the process by which the parties of a dispute obtain relevant documentary evidence from each
other (or some other person) which is necessary for the determination of the case.
o Note: For actions commenced on/after 01/01/2000.

TYPES OF APPLICATIONS FOR DISCOVERY

 [1] General obligation to disclose – i.e. what must be disclosed?

o O 24 r 1, ROC: Documents which are or have been in his “possession, custody, or power”.
 “Documents”.
 s 3, Evidence Act defines it as “any matter expressed or described upon any substance by
means of letter, figures or marks or by more than one of these means intended to be used or
which may be used for the purpose of recoding the matter.
 See also s 269, CPC 2012 – includes images (photo, film, negative, etc.) and sound (disc, tape,
soundtrack, etc.).
 “Possession” – refers to the right to possess a document.
 “Custody” – refers to the actual physical holding of a document, irrespective of his right to possession.
 “Power”.
 Lonrho Ltd v Shell Petroleum Co Ltd (1980)
o HELD: “Power refers to “a presently enforceable legal right to obtain from
whomever actually holds the document inspection of it, without the need to obtain
the consent of anyone else”.
o Test of relevance in O 24 r 1(2), ROC – discovery is limited to these classes of documents.
 (a) Documents on which party relies/will rely.
 (b) Documents which could:
 (i) Adversely affect one’s own case; or
 (ii) Adversely affect/support another party’s case.
o Test of necessity in O 24 r 7, ROC.
 O 24 r 7, ROC: Discovery must be “necessary for disposing fairly of the matter or for saving costs”.
 [2] Application for specific discovery can be made against purpose.
o O 24 r 5(1), ROC: On application by any party, court may order any party to make an affidavit stating whether
any document/class of documents are in his possession, custody or power, and if not, what has become of it.
 The MCST Plan No 689 v DTZ Debenham Tie Leung (2008)
 HELD: An affidavit resisting an order for specific discovery must address what has happened
to these documents, or depose to whether the party knows what has happened to these
documents. It is not enough to simply state that the party does not have the documents.
o O 24 r 5(3), ROC: Procedure.
 Application by summons supported by affidavit.
 Affidavit must state belief of deponent that party from which discovery is sought has or had
possession, custody or power of documents sought.
o Expanded test of relevance for further discovery in O 24 r 5(3), ROC.
 (a) Documents on which party relies/will rely.
 (b) Documents which could:
 (i) Adversely affect one’s own case; or
 (ii) Adversely affect/support another party’s case.
 (c) Documents which could lead to a party seeking discovery to a train of inquiry, resulting in his
obtaining information which may:
 (i) Adversely affect one’s own case; or
 (ii) Adversely affect/support another party’s case.
 The expanded subsection (c) is adopted from Compagnie Financiere v Peruvian Guano (1882).

25
  HELD: A document is relevant if it is reasonable to suppose that it contains information which
would either directly or indirectly enable the party (requiring the discovery) either to
advance his own case or damage the case of his adversary.
 The test is broadly worded to ensure that all relevant evidence will be made available so that
a dispute can be adjudicated fairly.
 See also Tan Chin Seng v Raffles Town Club (2002).
o Test of necessity in O 24 r 7, ROC.
 O 24 r 7, ROC: Discovery must be “necessary for disposing fairly of the matter or for saving costs”,
even though there is a greater latitude of relevance (c.f. O 24 r 1, ROC).
 Court must balance the need for discovery vs. the risk of abuse of the discovery process.
 Dolling-Baker v Merret (1990)
 HELD: Even if the documents are relevant, discovery may not be ordered if they are not
necessary for the fair disposal of the dispute.
o Also, need to prevent “fishing” (i.e. seeking discovery of documents without demonstrating need/relevance).
 [3] Pre-action discovery (before commencement of an action).
o O 24 r 6(1), ROC: Procedure – same whether person from whom discovery sought is a potential party or not.
 Application by summons supported by affidavit.
 Affidavit must state grounds of application, material facts pertaining to intended proceedings
and whether person against whom order sought is likely to be a party (O 24 r 6(3)(a), ROC).
 Necessary to describe/specify the documents sought (O 24 r 6(3)(b), ROC).
 Affidavit must also state the relevance of the documents sought, and state that the person is
likely to have those documents in his possession, custody or power.
o Kuah Kok Kim v Ernst & Young (1997)
 HELD: Pre-action discovery is to assist the plaintiff because he may not know whether he has a viable
claim against the defendant at this stage.
 However, need to prevent “fishing” – hence, the plaintiff must set out the substance of the claim, and
state the cause of action to enable a potential defendant to know the essence of the complaint.
o Bayerische Hypo-und Vereinsback AG v APB (2004)
 HELD: Even if documents are relevant, they must satisfy O 24 r 7, ROC (i.e. that discovery must be
“necessary for disposing fairly of the matter or for saving costs”).
 [4] Discovery against non-party.
o O 24 r 6(4), ROC: Procedure.
 Application by summons supported by affidavit.
 Affidavit must describe documents, state the relevance of the documents sought, and state
that the person is likely to have those documents in his possession, custody or power.
 O 24 r 6(2), ROC: Must be served personally on that person and every party to the proceedings.
o Shaw v Vauxall (1974)
 HELD: Must satisfy O 24 r 7, ROC (i.e. that discovery must be “necessary for disposing fairly of the
matter or for saving costs”).

CONTINUING OBLIGATION TO DISCLOSE

 O 24 r 8, ROC: Duty to continue to give discovery of documents continues throughout proceedings.

o C.a. common law principle that giving discovery of document is a continuing obligation.
o Discovery of new documents can be done by means of a supplemental list of document.

PRIVILEGE

 O 24 r 3(2), ROC: Documents protected by privilege are not discoverable.

o Types of privilege – legal professional privilege, litigation privilege, privilege against self-incrimination, O 24 r
15, ROC: Public interest privilege, “Without Prejudice” communications, etc.
o Claim must be made in the list of documents with a sufficient statement of the grounds of the privilege.
 If a party mistakenly includes privileged documents in the list (no inspection having taken place) can
apply to the court to amend the list.
o Facts upon which privilege is claimed must be set out in the affidavit (Gardner v Irvin (1878)).
 O 24 r19, ROC: A party who inspects document mistakenly discovered needs the leave of court to use it.

HOW TO DISCLOSE?

 List of documents in Form 37, and affidavit verifying the list in Form 38.
 List is divided into 2 Schedules.
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 o Schedule 1: Documents in possession, custody, or power.
 Part 1 – no privilege applies (see Cooke v Smith (1891)).
 Part 2 – privilege documents (broad categorisation permissible).
o Schedule 2: Documents previously in possession, custody or power.
 Give details of when documents were last in possession, and what has become of them.

IMPLIED UNDERTAKING NOT TO USE DOCUMENTS FOR A COLLATERAL/ULTERIOR PURPOSE

 A party may only use documents for the conduct of the case.
o Rationale – preserving privacy and confidence while maintaining the public interest in discovering the truth so
that justice is done between the parties (Riddick v Thames Board Mills (1977)).
 Microsoft Corporation v SM Summit Holdings Ltd (1999)
o HELD: Singapore court approved of the principle that there’s an implied undertaking not to use documents
disclosed by the other party for a collateral/improper purpose (i.e. other than for the purpose of the
proceedings in which discovery was made, unless leave of court is granted.
 Leave of court is only granted in very exceptional circumstances.
 Implied undertaking does not apply if a party voluntarily discloses document when they are not
compelled to do so (Hong Lam Marine Pte Ltd v Koh Chye Heng (1998)).
 Breach can result in contempt proceedings, and/or an injunction to restrain the unjustified use.

CONSEQUENCES OF FAILURE TO COMPLY WITH DISCOVERY ORDER

 If there is failure to comply, the court will usually make an “unless order” in the first instance – disobedience of an
“unless order” is likely to amount to contempt, resulting in the dismissal of the action, or striking out of the defence.
o Syed Mohamed Abdul Muthaliff v Arjan Bhisham Chotrani (1999)
 HELD: Onus is on the defaulter to show that there was no intention to ignore the “unless order”, and
that the failure to comply was due to extraneous circumstances.
o Changhe International Investments Pte Ltd v BIL (2000)
 HELD: Once an “unless order” is breached, the opposing party can either apply for a final order, or
write to the Registry with a suitable draft order.
o Wiltopps (Asia) Ltd v Drew & Napier (2000)
 HELD: An “unless order” obtained by consent can only be set aside on grounds similar to that of
setting aside of a contract.
 Other consequences for failure to comply with requirement for discovery, etc.
o O 24 r 16(1), ROC: Action dismissed, or defence struck out, and judgment entered.
o O 24 r 16(2): ROC: Committal of party failing to comply with the discovery order.
o O 24 r 16(4), ROC: Committal of solicitor who fails to notify the client of the discovery order.
o O 24 r 16(5), ROC: Inability to rely on undisclosed documents, unless with leave of the court.
 s 116, Evidence Act: Adverse presumption can be drawn for the failure to disclose.

DUTIES OF THE SOLICITORS

 Koh Teck Hwee v Leow Swee Lim (1992)

o HELD: The law requires solicitors to take positive steps to ensure that his client is aware of the precise scope of
the obligation to make full and proper discovery.
 This must be done at an early stage of the litigation.
 The client must locate all potentially relevant documents and pass them to the solicitor, who will
determine if they must be disclosed.
 The solicitor must also take steps to ensure that all discoverable documents are preserved.
 r 58, Legal Profession (Professional Conduct) Rules.
o An advocate and solicitor shall cease to act for a client if:
 The client refuses to authorise him to make some disclosure to the court which his duty to the court
requires him to make; or
 Having become aware during the course of a case of the existence of a document which should have
been disclosed but has not been disclosed on discovery, the client fails forthwith to disclose it.

DEEMING OF AUTHENTICITY OF DOCUMENTS

 List of documents to contain a notice to inspect in Form 39.

 O 27 r 4, ROC: A party is deemed to admit authenticity of documents in the list if he does not object to it within 14 days
of the time limited for inspection/actual inspection (whichever is later), unless:
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 o The court otherwise orders.
o Authenticity is denied in the party’s pleadings.

ELECTRONIC DISCOVERY

 A computer database is “document” for the purpose of discovery.

o Derby v Weldon (No 9) (1991)
 HELD: UK court held the database of a computer (in so far as it contained information capable of
being retrieved or converted into a readable form, and whether stored in the computer itself or
recorded in backup files) was a “document”.
o Alliance Management SA v Pendleton Lane P (2008)
 HELD: Material stored on a computer database was a “document” for the purpose of O 24 r 1, ROC.
 Guidance on electronic discovery – Part IVA, Practice Direction No 3 of 2009: “Discovery and Inspection of Electronically
Stored Documents”.
o Overriding principle of “proportionate and economical discovery”.
o Paragraph 43A(1): Part IVA applies:
 [1] By mutual agreement of all parties in the cause/matter; or
 Note: Parties should consider electronic discovery where:
o Claim/counterclaim exceeds $1 million; or
o Documents discovered exceed 2,000 pages in aggregate; or
o Discoverable material substantially comprises of electronic documents or emails.
 [2] When the court so orders, either on its own motion or on application by a party.
 Note: Must persuade the court why (the additional) electronic discovery is required.
o Paragraph 43B(1): Within 2 weeks from close of pleadings, parties are encouraged to collaborate in good faith
and agree on issues relating to discovery and inspection of electronically stored documents.
 Parties should consider Appendix E, Practice Direction No 3 of 2009, which prescribes a checklist of
issues for such good faith collaboration.
o Paragraph 43D(2): Traditional tests of relevancy and necessity still apply – however, incurring costs is not a
sufficient objection to electronic discovery per se, as long as the expenses incurred are justified by relevance
and necessity.
o Paragraph 43J: New framework to allow inspection by simply supplying electronic copies of discoverable
documents, if doing so will facilitate the just, expeditious and economical disposal of the matter.
 Robin Duane Littau v Atrata (2011) – process of electronic discovery.
o HELD: 3-stage process for the conduct of the review of electronic documents.
 [1] Parties to agree on list of keywords to be used to conduct a reasonable search.
 Note: “Reasonable search” considers proportionality, and means that the rules do not
require that no stone should be left unturned (Nichia Corp v Argos Ltd (2007)).
 [2] Reasonable search to be conducted on the forensic images of the seized items.
 [3] Search results would be reviewed by counsel to identify confidential information and information
subject to privilege.
o Court held that there was no need to conduct further search of relevance from the results (generated by the
agreed list of keyboards) – documents so obtained are prima facie relevant.
 Sanae Achar v Sci-Gen Ltd (2011) – difficulties of electronic discovery.
o HELD: Inherent difficulties in electronic discovery.
 Unprecedented volume of documents created and stored electronically today.
 Relative ease of duplicating such documents.
 Often haphazard manner in which electronic documents are stored.
 Different document retention policies of parties – e.g. some parties routinely delete documents to
maximise storage capacity.
 Existence of metadata information.
 Also, the difficulty of completing disposing electronically stored documents.

INTERROGATORIES
 What are interrogatories?
o They are a method of discovery of material facts by which written questions are delivered by one party to
another relating to a matter in question between them in the cause/matter.
o Usually after discovery and exchange of witness statement.
 When are interrogatories useful?
o Rarely used in practice.

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 o Useful where one party must rely on another as the sole source of information – e.g. plaintiff injured in an
accident where there are no independent witnesses and where the plaintiff cannot recall the events.
o Useful where parties have different versions of the same set of circumstances – interrogatories can be used as
a way of obtaining admissions so as to narrow down the issues in dispute.
 How to apply?
o O 26 r 2, ROC: Serve a list of questions in Form 48 with a note specifying time (not less than 14 days) in which
they are to be answered.
 O 26 r 6, ROC: If the other party fails to answer, the court can make such order as it thinks just
(including an order than an action be dismissed, or a defence struck out, and judgment entered).
 O 26 r 3(2), ROC: If the other party does not wish to answer, the other party must take out an
application for interrogatories to be withdrawn within 14 days of service.
 Court’s discretion to order interrogatories.
o Test of relevance – similar to that for discovery (Mariott v Chamberlain (1886)).
o Test of necessity – O 26 r 1, ROC: Interrogatories must be “necessary for disposing fairly of the matter or for
saving costs” (stringent test).
o No “fishing” interrogatories (OCBC v Wright (1989)).
 Appeals to the Court of Appeal– see s 34(1), Supreme Court of Judicature Act.
o No right of appeal.

SPECIAL CLASSES OF INTERROGATORIES

 [1] Pre-action interrogatories.

o O 26A r 1(1), ROC: Procedure.
 Application by summons supported by affidavit.
 Affidavit must state grounds of application, material facts pertaining to intended proceedings
and whether person against whom order sought is likely to be a party.
 Affidavit must also show relevance of questions to issues arising/likely to arise (Foo Ko Hing v
Foo Chee Heng (2002)).
o O 26A r 2, ROC: Pre-action interrogatories will be ordered only if “necessary for disposing fairly of the matter
or for saving costs” – see also Richland Logistics Singapore Services Pte Ltd v Biforst Singapore Pte Ltd (2006)).
 [2] Interrogatories against non-parties.
o O 26A r 1(2), ROC: Procedure.
 Application by summons supported by affidavit.

SUMMONS FOR DIRECTIONS

 O 25 r 1(4), ROC: Plaintiff must take out summons for directions in Form 44 within 1 month after the close of
pleadings.
o If the plaintiff fails to do so, the defendant can also apply, or alternatively, the defendant may also apply for
action to be dismissed.
o Auto Clean ‘N’ Shine Services v Eastern Publishing Associates Pte Ltd (1997)
 HELD: Court laid down principles for summons for directions – all matters that must or can be dealt
with in interlocutory applications and which have not already been dealt with, must be included in the
originating summons for directions.
 Only unforeseen matters should be subject to subsequent interlocutory applications.
o Common directions in Form 44.
 Consolidation.
 Amendment of pleadings.
 Further and better particulars.
 Specific discovery.
 Interrogatories.
 Witnesses (factual and expert).
 Affidavits of evidence-in-chief.
 Setting down, trial period and dates.
 O 25 r 8, ROC: Automatic directions apply to actions for personal injuries (excluding admiralty and medical negligence)
and actions arising out of accidents on land due to a collision or apprehended collision.
o Note: O 25 r 8(7), ROC: This does not apply where parties have applied for judgment under O 14, ROC.
o Note: Non-injury motor accident actions are governed by O 25 r 1A, ROC.

SETTING DOWN (FOR TRIAL OF ACTION BEGUN BY WRIT)

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  Setting down is the last step before the trial commences.
 Time for setting down action.
o O 34 r 2(1), ROC: Every order made on a summons for directions must fix a period to set down action for trial.
 O 34 r 2(2), ROC: Where plaintiff fails to set down, the defendant can also set down, or alternatively,
the defendant may also apply for action to be dismissed.
 O 34 r 2(3), ROC: Set down action must contain an estimate of the length of trial (i.e. how long they need) and specify
the number of witnesses (if any), and specify the list in which the action is to be put.
 Filing of documents when setting down, and notifying of setting down.
o O 34 r 3A(1), ROC: File a request in Form 61 and bundle (containing the writ, the pleadings and all order made
on the summons for directions) not less than 5 days before the trial.
o Notice of setting down is to be served on the other parties involved.

PRE-TRIAL CONFERENCES
 Pre-trial conferences to be held when directed by the court so as to achieve a just, expeditious and economical disposal
of the cause/matter.
o Hence, the court has wide powers under O 34A, ROC and may make any orders.
 Failure to appear at a pre-trial conference.
o O 34A r 6, ROC: If there is a failure to appear at a pre-trial conference, the court may dismiss the action, strike
out the defence/counterclaim, or enter judgment or make such order as it thinks fit.
 Non-disclosure of communication at the trial.
o O 34A r 7, ROC: No communication made in the course of a pre-trial conference shall be disclosed to the court
during the conduct of the trial, if such communication has been stated to be “confidential” or “without
prejudice”.

DISMISSAL FOR WANT OF PROSECUTION

 O 21 r 2(6), ROC: Where 1 year has lapsed since the last step/proceeding in the action, the action is deemed to have
been discontinued.
o Lai Swee Lin Linda v AG (2008)
 HELD: A “step in the proceeding” must be an action vested with formality of the court adjudication
process (e.g. a letter to a judge asking for further arguments as required by law), but excludes general
correspondence (with the court or between parties).
o O 21 r 2(6B), ROC: Court may extend the 1 year period on application of a party prior to expiration of period.
 O 21 r 2(8), ROC: On application, the court may reinstate the action or allow it to proceed on terms it thinks just.
o See Joshua Benjamin Jeyaretna v Lee Kuan Yew (2001) where application to strike out claim was dismissed.
o Main considerations for reinstatement.
 [1] Delay.
 Defendant had failed to show that he was prejudiced by the delay (namely prejudice that is
not compensable by costs); and
 Limitation period for the plaintiff’s action had not expired – as the plaintiff was at liberty to
bring the action again even if it were struck out now, that would only incur further costs.
 [2] Abuse of process and contumelious conduct (i.e. a wholesale disregard of the rules).
 Made out only in exceptional cases (The Tokai Maru (1998)).
 For this factor, no need to show either prejudice or the fact that limitation had expired.
 Pre-writ delay can compound any post-writ delay (Birkett v James (1978)).
 Once an action is struck out for failure to comply with an “unless order”, a fresh action
cannot be brought and the court can order a stay of the fresh action (Benjamin Jeyaretna v
Lee Kuan Yew (2001)).

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6. PROVISIONAL REMEDIES
INTRODUCTION
 What is an injunction?
o An injunction is a form of relief granted where damages are inadequate compensation.
o It is an equitable relief meant to supplement other common law remedies – hence, must have “clean hands”.
 Types of injunctions.
o Final/perpetual injunction.
 An injunction based on the final determination of the rights of the parties, or upon the final resolution
of the dispute.
o Interim/interlocutory injunction.
 An injunction pending the outcome of the trial/arbitration/etc. – it is limited so as to apply only until
the final determination of the rights of the parties.
o Mandatory injunction.
 An injunction compelling/mandating a party to carry out an act.
o Prohibitory injunction.
 An injunction restraining a party from carrying out a wrongful act, or a continued wrongful act.
o Quia timet injunction.
 An injunction restraining a party from carrying out an anticipated wrongful act/breach which is being
threatened/very likely to be carried out (i.e. imminent danger that is not speculative).
 Note: In such a case, the defendant has not yet carried out the wrongful act, but is intending or
threatening to carry it out and will cause irreparable harm to the applicant or his property.
o Mareva injunctions.
 An injunction freezing the assets of the defendant, restraining him from dissipating the assets to avoid
the successful enforcement of a judgment.
o Search orders (formerly “Anton Piller” orders).
 A form of mandatory injunction requiring a party to permit another to enter the premises for the
purpose of inspection, detention and preservation of property or evidence that may be the subject
matter of the dispute.
 Jurisdiction to grant injunctions.
o In Singapore, the Supreme Court and Subordinate Courts both have jurisdiction to grant injunction.
 This is provided for under s 4(10), Civil Law Act, s 18(2), Supreme Court of Judicature Act (read with
Paragraph 5 of the First Schedule, Supreme Court of Judicature Act), and ss 31 and 32, Subordinate
Courts Act.
 Also, case law suggests that the courts have inherent jurisdiction to grant injunction – e.g. as provided
for in O 92 r 4, ROC.
 Injunctions act in personam.
o An injunction is a court order against a named party. If the party breaches the order, he is liable to be punished
for contempt of court. If 3rd parties assist or abet in the breach, the 3rd party may also be held in contempt.
o The Nagasaki Spirit (1994)
 HELD: The Mareva injunction acts only in personam and is not an attachment of assets. Hence, the
Mareva injunction cannot be used to prevent the defendant from applying his assets for legitimate
purposes (e.g. satisfying other undisputed debts and legitimate expenses).
 No injunctions against the government.
o s 27(1)(a), Government Proceedings Act: Express statutory prohibition stating that injunctions cannot be
granted against the government.
o Bocotra Construction Pte Ltd v AG (1994)
 HELD: Although declaratory reliefs may be sought against the government, the Court of Appeal
emphasised that it cannot be used to grant injunctive relief.

INTERIM INJUNCTION
 Interlocutory injunction is not a cause of action in itself but is ancillary to a substantive cause of action.
o The Siskina (1979)
 HELD: The right to obtain an interlocutory injunction is not a cause of action and cannot stand on its
own. It is dependent on there being a pre-existing cause of action against the defendant arising out of
an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff.

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 The Singapore courts have continually affirmed the UK House of Lords decision in American Cyanamid Co v Ethicon Ltd
(1975) in considering an application for an interim injunction.
o [1] The courts need to be persuaded that there is a serious question to be tried (i.e. the claim must not be
frivolous or vexatious).
 The applicant need only show that there is a serious question to be tried, and need not prove that he
will certainly succeed at the trial.
 This is because evidence available at that stage is incomplete and has not be cross-examined.
 The court need not resolve conflicts at this stage – these are matters to be dealt with at trial.
o [2] The courts have an unfettered discretion to consider special circumstances/factors in deciding either way.
o [3] The balance of convenience lies in favour of granting the injunction.
 [a] Damages must not be adequate.
 Fellows & Son v Fisher (1975)
o HELD: To succeed in [2], the applicant must not be adequately compensable by
damages for any loss caused by the defendant arising out of the refusal to grant the
interim injunction.
o If damages recoverable at common law would be adequate remedy and the
defendant is able to pay, no interlocutory injunction should normally be granted.
 Examples of disputes where damages are considered inadequate.
o Passing off and intellectual property right where goodwill is being injured/diluted.
 Reed Exhibitions Pte Ltd v Khoo Yak Chuan Thomas (1995)
 HELD: Loss of goodwill hard to compensate and difficult to
quantify.
o Shareholder disputes – e.g. removal of directorship, shareholder’s right to vote.
o Where defendant has no financial means of making such payment.
 Burden on plaintiff to show that the defendant cannot pay damages
(Fellows & Son v Fisher (1975)).
 See Re Fineplas Holdings Pte Ltd (2001) and WSG Nimbus Pte Ltd v Board of Control for
Cricket in Sri Lanka (2002) where the Singapore High Court held that damages were adequate
remedy.
 [b] Where there is doubt as to the adequacy of damages, the issue of “balance of convenience” arises.
 Courts will take the course which carries the lesser risk of injustice if it turns out to be
wrong in having granted the injunction.
o Bengawan Solo Pte Ltd v Season Confectionery Co Pte Ltd (1994)
 Appeal arising out of an interim injunction granted to restrain the
defendant from selling mooncakes under a similar name to the plaintiff.
 HELD: Court of Appeal set aside the interim injunction, and noted if an
injunction weren’t granted, the measure of damages would be profits from
the sale of the mooncakes made by the defendant which could have been
made by the plaintiff. It also noted that the defendant was able to meet an
award of damage.
 On the other hand, if the injunction was granted and the plaintiff did not
succeed in their claim at trial, the full extent of the defendant’s loss would
be incalculable as there would be immense difficulty in proving the volume
of sales they would have achieved.
 Courts may sometimes take the appropriate point in time in which one ascertains the status
quo to preserve the status quo ante (i.e. maintain the state of affairs at the time just before
the commencement of the proceedings).
o Buckman Laboratories (Asia) Pte Ltd v Lee Wei Hoong (1999)
 Employer applied to restrain ex-employee from working with a competitor.
 HEL: Court preferred not to disturb the status quo which was that “the
defendant had already left the employer and had started work”.
 Procedure for application of an interim injunction is set out in O 29 rr 1 – 8, ROC.
o Note: Applicant must also comply with the Practice Directions of the Supreme Court and Subordinate Courts.
o Generally, application is filed together with, or as soon as possible, after the originating process has been filed.
o Application is by summons supported with an affidavit.
 Affidavit should contain statement of information or belief as a basis for application.
 Dynacast (S) Pte Ltd v Lim Meng Siang (1989)
o HELD: Court rejected affidavit evidence where applicant failed to identify the
sources or the grounds of the belief, highlighting that it is a fundamental defect.
o Ex parte or inter partes?
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  Practice Directions have clear provisions that notice should be given to the other party.
 Note: But Mareva injunction and search order no need because surprise is necessary
 However, if application if of such urgency that it has to be made on an ex parte basis, then the
affidavit must contain statements of the following:
 Facts giving rise to the claim against the defendant.
 Facts supporting the claim for interim relief.
 Facts justifying the application being made on an ex parte basis, why notice could not be
given to the opposing party, and if there is a delay in making the application, the reasons for
delay.
 Any response/answer that the defendant has made/like to made to refute this claim.
 Any material fact which may impact on the court’s decision not to grant the relief.
o This should include material facts that may impact negatively on the application.
 Specific terms of the relief sought.
o Terms should be limited in scope but still effective to restrain the breach – if it is too
wide, it may be a basis for subsequent discharge.
 Note: Applicant usually has to give a cross-undertaking as to damages to provide a means of compensation for the
defendant if loss is incurred when the applicant loses at trial.

ERINFORD INJUNCTION

 It is an injunction pending appeal against order setting aside an injunction.

o To succeed, the applicant cant must show that even if he does succeed in the appeal, the appeal would be
nugatory if the status quo between the parties is not preserved.
 The Nagasaki Spirit (1994)
o Application for an Erinford injunction after failure in application of a Mareva injunction.
o HELD: Erinford injunction cannot be granted in an interlocutory matter, or else it would lead to an abuse of
process, since applicants would simply file an appeal in most cases.
o CRITICISM: May be too restrictive since most injunctions are interlocutory matters.

UNDERTAKINGS IN LIEU OF INJUNCTION

 It is possible for the defendant to give a voluntary undertaking to the court not to carry out the wrongful act, in lieu of
the injunction being granted, and the defendant may do so without admission as to liability.
o Note: Because of such a voluntary undertaking, the plaintiff does not furnish any cross-undertaking as to
damages. Hence, defendant may wish to extract such a cross-undertaking.
o A breach of an undertaking is equivalent to that of an injunction.
 The court can also ask the defendant for such an undertaking failing which, it will proceed to grant an injunction.

DISCHARGE OR VARIATION OF INJUNCTION

 The defendant or anyone notified of the order may apply to the court at any time to vary or discharge the order.
o Application is by summons and supported by affidavit.
o Documents are then served on the plaintiff.
 Common reasons for setting aside an injunction.
o [1] No urgency requiring ex parte application.
 Png Siaw Luan v Wong Tui San (1990)
 HELD: Insufficiency to justify an ex parte application is sufficient basis to discharge injunction.
 New Civilbuild Pte Ltd v Guobena Sdn Bhd (1998)
 HELD: Singapore High Court noted that Png Siaw Luan v Wong Tui San should be limited to its
facts, arguing that it is invidious for the next court to discharge an order solely on the basis
that it ought to have been made inter partes unless there is something in the circumstances
of the case that warrant it. It further noted that the cases relied on were more because the
applicant failed to make full and frank disclosure of all material facts.
 Tay Long Kee Impex Pte Ltd v Tan Beng Huwah (2000)
 HELD: Singapore Court of Appeal upheld trial court’s decision to set aside an interim
injunction because of the applicant’s failure to make full and frank disclosure. It noted that
the trial court was wrong in concluding that there was no urgency for making an ex parte
application (but did not consider Png Siaw Luan v Wong Tui San).
o [2] Abuse of process.
 Meespierson NV v Industrial and Commercial Bank of Vietnam (1998)

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  HELD: Singapore High Court discharged an injunction because it found, among other factors,
that there had been an abuse of process. The applicant’s motive in obtaining the Mareva
injunction was not to protect themselves against the risk of dissipation but was to oppress
the defendant and force them to settle and/or to obtain security for the claim.
o [3] Delay.
 UCO Bank v Golden View Maritime Pte Ltd (2003)
 Applicant sought Mareva injunction on an ex parte basis 16 months after action started.
 HELD: Failure to act promptly in the absence of a satisfactory reason is a ground for refusing
to grant or setting aside of an injunction.
o [4] No full and frank disclosure.
 Pac Asian Services Pte Ltd v European Asian Bank AG (1989)
 HELD: Singapore Court of Appeal held that the applicant must make full and frank disclosure
of all material facts (especially in an ex parte application), and “material fact” is:
o [1] Not just a decisive or conclusive fact, and includes one which could or would
reasonably be taken into account by a court in deciding whether to grant an
injunction.
o [2] One that, if disclosed, would enable the court to reach a different conclusion.
 The AAV (2001)
 HELD: Singapore High Court appears to apply a higher and stricter test – i.e. that any fact
which a court ought to be cognisant of when coming to its decision would be material,
regardless of whether such facts would have led to a different decision being made.
 Court will take a common sense approach to determine whether a fact is material or not, especially if
non-disclosure was not intentional.
 Court may be more prepared to forgive a transgression if disclosure of a particular fact would have
made no difference at all to its decision to grant the injunction.
 Material facts must be brought to the court’s specific and express attention.
 Examples of disclosure being insufficient.
o Merely exhibiting material documents in a bundle of documents with no
explanation offered to clarify the documents – see Lim Sung Huat v Sykt Pemaju
Tanah Tikam Batu Sdn Bhd (1994).
o Mere oral disclosure to judge – see Dynacast (S) Pte Ltd v Lim Meng Siang (1989).
o Merely setting out material facts in affidavit without bringing the court’s attention
to such material fact – see Damayanti Kantilal Doshi v Jigarlal Kantilal Doshi (2003).

MAREVA INJUNCTION
 A Mareva injunction can be used for the following:
o Primary purpose – prevent dissipation of assets found within the jurisdiction.
o Aid a plaintiff in the enforcement of a judgment.
o Enforcement of an arbitral award.
o Fulfilment of a costs order.
 Lee Kuan Yew v Tang Liang Hong (1997)
o HELD: For a judicial system to be effective, it has to provide a procedure to prevent a defendant from
dissipating or concealing assets to deny a successful plaintiff the fruits of his judgment if and when obtained.
o Court must be persuaded that there is a good, credible and cogent evidence that:
 [1] The plaintiff has a good arguable case.
 [2] The defendant has assets in or outside of Singapore.
 [3] There is a real risk of the judgment being unsatisfied if the Mareva injunction is not issued – i.e.
the judgment debtor is prepared to effect, or is in the process of, or has shown a propensity towards
dissipating assets out of the jurisdiction.
 Court may be more willing to grant a Mareva injunction where there is fraud or dishonest conduct of the defendant.
o OCM Opportunities Fund II v Burhan Uray (2004)
 HELD: Risk of dissipation is made out evidentially where there is a good arguable case of fraud.
o Spectramed Pte Ltd v Lek Puay Puay (2010)
 HELD: Court held that direct evidence concerning the defendant’s probity are relevant – hence, if
there is a good arguable case that the defendant had acted fraudulently, dishonestly, unconscionably,
etc., it is unnecessary for there to be further evidence of risk of dissipation.
 Court may not grant a Mareva injunction if the interests of innocent 3rd parties will be affected.
o Allied Marine Services Ltd v LMJ International Ltd (2006)

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  HELD: Court refused to grant an injunction because the indemnity offered by the plaintiff in this case
was too low and would not justify the inconvenience and uncertainties faced by 3rd parties.

SEARCH ORDER
 A search order (formerly known as the “Anton Piller” order) is a mandatory injunction that resembles a search warrant.
o It should only be made where:
 [1] It is essential that the plaintiff has inspection so that justice could be done.
 [2] If the defendant were forewarned, there is a grave danger that vital evidence will be destroyed or
taken beyond jurisdiction.
 [3] When inspection would do no real harm to the defendant or the case.
 Asian Corporate Services (SEA) Pte Ltd v Eastwest Management Ltd (2006)
o HELD: To warrant an issue of a search order, 4 tests must be satisfied:
 [1] Plaintiff must show that there is an extremely strong prima facie case.
 [2] Damage suffered by the plaintiff would have been very serious.
 [3] Real possibility that defendant would destroy relevant documents or take it beyond jurisdiction.
 Court accepted that it is unrealistic to require direct evidence, hence, may draw inference
(e.g. prior destruction, propensity, or that the defendant is engaging in nefarious activity that
renders it likely that he is untrustworthy) (BP Singapore Pte Ltd v Quek Chin Thean (2011).
 [4] Whether effect of search order would be out of proportion to the legitimate object of the order.
 Procedure.
o Application made by ex parte summons by an affidavit.
o Applicant must also engage a supervising solicitor for the execution of the search order, to ensure that it is
carried out in accordance with the terms stated in the order.
 The solicitor must not be from the firm acting for the applicant.
 The solicitor must have sufficient experience in this area of work.
 The solicitor should take precise notes, noting time of arrival of the search party, names of persons
present at the search, time of conclusion of search, and prepare a clear inventory of items seized.
 Note: Failure to properly execute a search order in compliance with the terms (e.g. number of
persons in the search party exceeding the numbers allowed, and searching areas not provided for) is a
basis for subsequent discharge – see TRW Aftermarket Asia Pte Ltd v Tan Teow Chock (2004) and
Global Indian Foundation Limited t/a Global Indian International School v Katikala Vikram Sagar
(2008).
 Costs.
o If the application for a search order is granted, costs in the cause (generally the case for ex parte proceedings)
but can also be costs against the defendant (if the defendant is trying to do naughty things).
o If not granted, costs ordered against the applicant.

SAMPLES TO BE TAKEN
 See O 29 r 3, ROC.

SALE OF PERISHABLE GOODS

 See O 29 r 4, ROC.

REQUEST FOR EARLY TRIAL

 O 29 r 5, ROC: Instead of an interim injunction, the court may direct an early trial of the matter.
 Even if an injunction has been granted against him, the defendant may seek the court’s direction for an early trial on
the basis that the defendant will be severely prejudiced by the injunction imposed over a long extended period of time.
o Direction is entirely discretionary.

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7. THE TRIAL
MATTERS TO BE CONSIDERED BEFORE TRIAL
 Preliminary matters – pleadings, case theory, legal authorities, documents, witnesses, affidavits of evidence, etc.
 Other considerations – subpoena, advocate as witness, failure of parties to appear, official record, court expert, etc.
 Subpoena.
o O 38 r 18(1), ROC: Subpoena must be served personally within 12 weeks (subpoena only valid for 12 weeks
from date of issue) unless court otherwise orders.
o Subpoena is an order of court, and refusal to obey is tantamount to contempt.
o No extra-territorial effect.
o The witness subpoenaed must be tendered reasonable expense.
o Although subpoena continues to have effect until the conclusion of the trial, in practice the court will release
the witness upon completion of evidence – it is the duty of counsel to apply if witness is still required.
 Advocate as witness.
o r 64, LPPCR: Lawyer shall not accept instructions where he is likely to be a witness in a case, and shall discharge
himself if he is likely to become a witness.
 Failure of parties to appear.
o O 35 r 1(1), ROC: If both parties do not appear, the action will be dismissed.
o O 35 r 1(2), ROC: If either party does not appear, the court may proceed with trial.
 Alternatively, the court may make such order, give judgment, or dismiss the action without trial.
 Such an order may be set aside, but absent party must apply within 14 days and show merit
and good reason (e.g. oversight or mistake).
 Costs.
 Court will order costs, including costs thrown away.
 Official record of hearing.
o O 38A, ROC: All open court trials are corded by audio recording, which is the official record.
 Appointment of court expert – e.g. valuers, engineers, doctors.
o Appointment by the court on its own motion, or pursuant to application by party.
o Court expert is independent and not treated as appointed by the parties.
 Vita Health Laboratories Pte Ltd v Pang Seng Meng (2004)
 HELD: Court expert has a higher duty to the court and should remain detached from the fray.
o Court expert can be subject to cross-examination.
o Court expert report is final unless there is fraud or manifest error.

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8. ENFORCEMENT OF JUDGMENTS &
ORDERS
INTRODUCTION
 Objective of enforcement is to realise the judgment.
o Note: There are 12 years to enforce judgment.
 Method of execution must be result-oriented.
o Must consider the judgment debtor’s willingness to pay.
 If judgment debtor is willing, then exercise restraint in enforcing.
 Just serve the copy of the judgment + a letter of demand.
o Must consider the location of the judgment debtor’s assets.
 Balance between time for judgment debtor to pay vs. move quickly to prevent dissipation of assets.
o Must consider whether leave of court is required for the particular mode of execution.
 If yes, usually apply by summons supported by affidavit.
 If no, just proceed to file the necessary forms.

MAIN METHODS OF ENFORCEMENT

WRIT OF EXECUTION (FOR MONEY JUDGMENTS ONLY)

 Purpose is to attach property to the judgment debtor and effect its sale.
 Types of writs of execution.
o Writ of Seizure and Sale.
 For movable property.
 For immovable property.
o Writ of Possession (where the tenant does not want to vacate the premises) – see O 45 r 3, ROC.
o Writ of Delivery and Writ of Specific Delivery – see O 45 r 4, ROC.

WRIT OF SEIZURE AND SALE (FOR MOVABLE PROPERTY)

 Leave of court generally not required.
o O 46 r 2, ROC: Not required.
o Exceptions – i.e. where leave is required:
 6 years have lapsed since the date of the judgment (even though it’s 12 years to enforce judgment).
 Change has taken place in the parties – i.e. death.
 Judgment is against assets of a deceased person (against executors).
 Where there is a condition to be fulfilled for the relief.
 Where movable property to be seized is in a receiver’s hands.
o O 46 r 3, ROC: Where leave is required, application by ex parte summons in Form 86 supported by affidavit.
 Affidavit must:
 Identify the judgment.
 State the amount due under judgment and at the date of the application.
 State grounds for delay in enforcing judgment if dealing with 6 year situation.
 Deal with change of parties if that is fact situation.
 Court may grant leave, or decide matter to be tried. In either case, court may impose conditions as to
costs, or other orders as it thinks just.
 O 46 r 2(3), ROC: Where leave is granted, the writ must be issued within 1 year.
 Form and life of the writ.
o Writ (for movable property) must be in Form 82.
o Writ is valid for 12 months, but may be extended.
 Formalities before execution under O 46 r 4, ROC:
o Deposit money to defray the costs of execution.
o File a request for date of execution (for movable property) under Form 87.
 Note: First come first serve – whoever files first takes priority, and gets first.
o Judgment/order must be produced.
o Solicitor’s undertaking for all costs and charges.
o Declaration that judgment debtor is owner/occupier of the property seized.

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  Execution.
o Notice of seizure in Form 90 given to judgment debtor.
 Note: If government securities or company securities, then Form 98, and notice of seizure must also
be given to the Accountant-General (if government securities), CDP and the company.
 O 47 r 6(6), ROC: After receipt of notice, no transfer of the securities can be effected unless
executed/directed by the sheriff.
 O 47 r 6(7), ROC: All interests of dividends payable will be transmitted to the sheriff.
 O 47r 7, ROC: Securities seized may be sold through the agency of a broker.
o Execution to be done between 9 am – 5pm usually.
o Note: What cannot be seized? See s 13, Supreme Court of Judicature Act.
 Apparel, bedding, tools of trade, when the value of such thing does not exceed $1,000.
 Wages or salary of the judgment debtor.
 Pension, gratuity or allowance granted by the government.
 Shares in a partnership of a judgment debtor.
 Also, under s 51(6), Housing and Development Act, an HDB flat cannot be seized.
 Sheriff’s duty after execution.
o O 46 r 24(1), ROC: To sell what he has seized via a licensed auctioner – auction must be publicly advertised 14
days before the sale.
o If property is less than $2,000, the sheriff may enter into private treaty for the sale.
 Interpleader summons – O 17, ROC.
o To determine the ownership of the goods seized in the event where there is a dispute.
 Note: This is possible with immovable property – e.g. if there is a retention-of-title clause in a hire-
purchase agreement.
o The claimant is the 3rd party claiming against the property taken into execution/seized by the sheriff.
o 3rd party claimant files notice in Form 22.
 Identify items of property he is claiming.
 State grounds of his claim.
 Signed by claimant/his solicitor
 Served on sheriff and executor creditor/solicitors.
o On receipt of 3rd party claim, sheriff gives notice to execution creditor in Form 23.
 Execution creditor has opportunity to admit or dispute claim.
 If admits claim, goods are released.
 If disputes claim, sheriff files Interpleader Summons in Form 27, and application by way of an
OS or in Form 25 – must be filed within 7 days before the return date containing:
o Background of claim of 3rd party claimant.
o That he has notified execution creditor, and the execution creditor does not admit
claim and has not requested sheriff to withdraw possession from claimed property.
o Sets out value of property claimed.
o That he has no interest in the property except for his commission, fees and
expenses in the execution.
o Interpleader order is then made.
o Powers of court.
 To dispose summarily – O 17 r 5, ROC.
 To order trial of an issue – O 17 r 11, ROC.
 Costs.
o If application is granted, costs follow the event, and costs ordered against the other party.
 O 46 r 8, ROC: Both the cost of, and incidental to, the writ shall be allowed.
o If not granted, costs ordered against the applicant.

WRIT OF SEIZURE AND SALE (FOR IMMOVABLE PROPERTY)

 Note: First lodge a caveat with SLA against the property to protect the party’s interest.
 Leave of court is required.
o O 47 rr 4(1)(b) and (c), ROC: Leave of court is required.
 Application be ex parte summons in Form 83 supported by affidavit.
 Affidavit must:
o Identify the judgment.
o State the amount due under judgment and at the date of the application.
o Specify the property.
o Specify that the property belongs to the judgment debtor.
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  Form and life of the writ.
o Writ must be in Form 83.
o Writ is valid for 6 months, but may be extended.
 Formalities before execution.
o File the writ with SLA, and request for direction to the sheriff in Form 95.
o File actual directions to the sheriff in Form 96.
 Execution.
o Notice of seizure in Form 97 given to judgment debtor.
o O 47 r 5, ROC: Manner of execution is by sale.
 30 days must lapse from date of filing the writ with SLA.
 Conditions and terms of sale must be settled by the sheriff.
 Judgment debtor may apply for postponement to raise the amount – court may postpone if it finds
that there is reasonable grounds to believe that said money can be raised.
 Judgment creditor may apply for appointment of receiver for rents and proceed.

EXAMINATION OF JUDGMENT DEBTOR: O 48, ROC

 Purpose is to examine orally [1] what the assets of the judgment debtor are, [2] where the assets are located and [3] for
production of documents.
o Order is invoked if the judgment creditor is unable to ascertain the judgment debtor’s assets.
o Leave of court is required.
 Application by ex parte summons supported by affidavit in Form 99.
o Order must be served personally on the judgment debtor and on any officer of a body corporate ordered to
attend the examination in Form 100.
o Judgment debtor must attend personally before the Registrar to provide information.
 Note: Examination of judgment debtor to satisfy (non-monetary judgment).
o O 48 r 2, ROC: Where any difficulty arises in connection with the enforcement of any judgment/order, the
court may make an order for the attendance of the judgment debtor to satisfy the judgment/order, and for his
examination on such questions as may be specified in the order.

GARNISHEE PROCEEDINGS: O 49, ROC

 Where there is a sum of money due to the judgment debtor by a 3 rd party (i.e. the garnishee), the court may order
garnishee to pay the judgment creditor.
o [1] There must either be debts “due” to the judgment debtor.
 Hall v Pritchett (1878), HSBC v Goh Su Liat (1985)
 HELD: If the garnishee is only obliged to pay the judgment debtor at a later time, the debt is
only due and attachable at that time.
 A garnishee order cannot accelerate the repayment of a debt – hence, if the debt is not presently
owing (i.e. judgment debtor is only entitled to be paid a sum of money at some future time), wait it
out (remember, there’s Mareva injunction if necessary) and commence garnishee proceedings later.
o [2] Or there must be debts “accruing due” to the judgment debtor.
 A garnishee order may be made of a debt presently owing, even if it is payable only in the future.
 Note: What cannot be garnished?
o s 13, Supreme Court of Judicature Act: E.g. wages or salary of the judgment debtor.
 1st application – for an order to show cause.
o Application by ex parte summons supported by affidavit in Form 102.
 Affidavit must:
 Identify the judgment.
 State the amount due under judgment and at the date of the application.
 State that the garnishee is within jurisdiction.
 State the sources and grounds of belief.
o If order granted, it is called a show cause order in Form 101.
 The show cause order must be served under O 49 r 3(1), ROC.
 Must be served on garnishee personally.
 Must be served on judgment debtor at least 7 days before consideration of the matter.
o Upon service of show cause order, an equitable charge arises to bind the hands of the garnishee.
 The garnishee cannot pay to anybody without risk of paying twice over.
o O 49 r 5, ROC: Garnishee may dispute the liability on the show cause order.
 Court may summarily determine the issue.
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  2nd application – for a final order.
o If the garnishee does not attend court or does not dispute the show cause order, court can make final
garnishee order under Form 103.
o If garnishee does attend court, court may summarily determine issue or try the matter under Form 104.
o If there claims by other 3rd parties, the court may order attendance of that 3rd party and consider his interest.
 O 49 r 8, ROC: Payment made by garnishee to the execution creditor pursuant to the court order is a valid discharge of
his liability to the judgment debtor.
 O 49 r 9, ROC: Where money is in court, must apply to court by summons for discharge of money.
 Note: Garnishee proceedings do not apply to debts owed by the government.
o Instead, must apply for a restraining order under s 33(1), Government Proceedings Act.
 Costs.
o If application is granted, costs follow the event, scaled as per O 59, ROC – refer to Appendix 2 of O 59, ROC.
o If not granted, costs ordered against the applicant.

STOP ORDER: O 50, ROC

 Where a person is claiming a beneficial interest in securities, and wishes to be notified of their transfer/payment.
 Leave of court is required.
o No summons to be filed – replaced by notice to the Accountant-General and an affidavit pursuant to O 50 r 1,
ROC is required in Form 105.
 Affidavit must identify the securities in question and describe the applicant’s interest.
 O 50 r 2(1), ROC: Effect of a stop order.
o Under the order, Accountant-General shall not register transfer of shares, or make a payment of
divided/interest without informing applicant.
 O 50 r 5, ROC: Restraining order in Form 106.
o Under the order, any transfer of shares will be prohibited.

APPOINTMENT OF RECEIVER: O 51, ROC

 Where there are various interest in a property (e.g. a joint tenant, or another tenant-in-common) in which a judgment
debtor may be entitled, or if the assets are widely scattered, the receiver may reach such interest.
o However, because the appointment of a receiver is expensive, it is only appropriate where there are legal
impediments and special circumstances.
 O 51 r 1(1), ROC: In application for the appointment of receivers by way of equitable execution – court must consider:
o Whether it is just or convenient.
o Amount likely to be obtained by the receiver.
o Costs of the appointment of the receiver.
 Leave of court is required.
o O 51 r 3(2), ROC: Summons for the appointment of receiver in Form 107.
 O 51 r 3(2), ROC: Order for appointment of receiver in Form 108.

COMMITTAL PROCEEDINGS: O 52, ROC

 Where there is disobedience to the judgment/order or failure to carry out undertaking.

 O 52 r 2, ROC: Leave of court is required.
o Application by originating summons supported by affidavit.
o Leave is valid for 14 days.
 O 52 r 3, ROC: Upon leave being granted, application for committal order must be made by summons.
o There must be 8 days between service of the committal order and the hearing for committal.
 At the committal hearing, the court may:
o Suspend execution of the committal order (O 52 r 6, ROC);
o Discharge the person sought to be committed (O 52 r 7, ROC); or
o Issue order of committal (and maybe, warrant of committal).
 O 52 r 1, ROC: Order of committal in Form 109.
 Order will not be executed if the party complies with the terms set out.
 O 59 r 9, ROC: Warrant for committal in Form 110.

ENFORCEMENT OF INJUNCTIONS: O 45 R 5, ROC

 Mandatory injunction – to do an act.

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  Prohibitory injunction – to abstain from doing an act.
 If injunctions are not adhered to, the court may:
o Order committal against the person.
o Order committal against any director/officer of a company.
 Leave of court is required.
o O 52 r 2(2), ROC: Application for leave by summons supported by affidavit.
 O 52 r 3(1), ROC: Upon obtaining leave, application by motion for order of committal.
o Order must be personally served and state the time within which compliance must take place.

OTHER MISCELLANEOUS METHODS

 Payment by instalments – s 43, Subordinate Courts Act and O 47 r 26A, ROC.

o Only applies to claims less than $250,000.
 Imprisonment of debtor.
o Under the Debtor’s Act, the court has the power to arrest, examine, and imprison a debtor.
 Arrest order usually made when debtor is likely to leave Singapore.
 Imprisonment order usually made when there is a failure to pay instalments.
 Winding-up proceedings (against a company)/bankruptcy proceedings (against an individual).

ENFORCEMENT OF FOREIGN JUDGMENTS

 Reciprocal Enforcement of Commonwealth Judgments Act.
o Must make application within 12 months from date of judgment.
 Reciprocal Enforcement of Foreign Judgments Act.
o For Hong Kong only.
o Must make application within 6 years from date of judgment.
 O 67 r 2, ROC: Applications under both of these Acts must be made by ex parte originating summons.

STAY OF EXECUTION
 [1] O 47 r 1(3), ROC: After the Writ of Seizure and Sale is obtained.
o Judgment debtor can apply for a stay of execution on grounds that there are special circumstances that
render it inexpedient to enforce the judgment.
o Application by summons supported by affidavit.
 Affidavit must set out:
 Judgment debtor’s inability to make payment.
 Judgment debtor’s income.
 Nature and value of assets owned and liabilities.
 Service on all interested parties, in particular the judgment creditor.
 [2] O 55D r 13, ROC and O 57 r 15, ROC: Stay pending appeal.
o Both parties may apply for a stay of execution pending appeal.
 Court will consider the merits of the appeal (i.e. chances of success), when it will be heard, etc.
o Application by summons supported by affidavit.
 Affidavit must set out:
 Grounds of application.
 Details of basis of appeal.
 Court has powers to make any orders it thinks fit.
 [3] O 14 r 6(1)(b), ROC: Where O 14, ROC summary judgment is obtained.
o Court may order stay of execution pending trial of claim of counterclaim.
 [4] O 45 r 11, ROC: After judgment is obtained, and certain relevant matters took place post-judgment.
o Enforcement conference.
 Application made by any party if matters occurred after judgment that have a bearing on the
enforcement.
 Court may make order or give direction for just, expeditious and economical disposal of proceedings,
including to strike out any Writs of Execution.

EXAMPLES
 Firstly, extract judgment and send a letter of demand to get payment first – exercise restraint to enforce judgment if
judgment debtor is willing and able to pay.

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 Secondly, remember to usually begin with examination of judgment debtor – the assets are usually never fully
identified.
 [1] Semi-detached house in Singapore, co-owed with judgment debtor’s father as tenants-in-common.
o Put a charge on the property – but CPF charge and mortgage will take priority.
o Writ of Seizure and Sale for immovable property under O 47 rr 4(1)(b) and (c), ROC.
 [2] Lamborghini worth $830,000, on hire-purchase.
o Writ of Seizure and Sale for movable property under r 46, ROC.
o Note: Must consider whether there is any retention-of-title (Romalpa) clause in the hire-purchase agreement
(use examination of judgment debtor under O 48, ROC) – if so, judgment debtor may not even have owned the
property, and 3rd party may be able to file interpleader summons.
o Note: If there are sums owing under the hire-purchase agreement, it may be advantageous to pay off the hire-
purchase company, and thus, obtaining legal title to the property.
 [3] POSB bank account, in P’s own name.
o Examination of judgment debtor under O 48, ROC to examine orally what the bank account number is, and
how much is in it.
o Garnishee proceedings under O 49, ROC because the sum of money is owed by POSB bank (i.e. the garnishee)
to the judgment debtor.
 1st application to show cause.
 2nd application for a final order.
 [4] 40,000 shares in listed company, but judgment debtor wants to transfer the shares to avoid execution.
o Interim injunction restraining the transfer of shares under O 29, ROC.
o Stop order under O 50, ROC because D is claiming a beneficial interest in securities, and wishes to be notified
of their transfer/payment.
o Restraining order under O 50, ROC to prevent transfer/payment.
o Lodge a caveat over the shares.
o Writ of Seizure and Sale for securities under O 47 rr 6 and 7, ROC.
 [5] Sculpture worth $50,000, exact location in Malaysia unknown.
o Examination of judgment debtor under O 48, ROC to examine orally where the sculpture is located.
o Enforcement of judgment in a foreign jurisdiction by applying for a Malaysian writ of seizure and sale.
 Reciprocal Enforcement of Commonwealth Judgment Act.
 Might be easier than to apply for a Singaporean Writ of Seizure and Sale for movable property under r
46, ROC – the sheriff etc. may not have authority to effect the seizure and sale.
 Note: If the property is a joint tenancy:
o Malayan Banking v Focal Finance (1999)
 HELD: Court held that a Writ of Seizure and Sale against immovable property cannot be used to
enforce a judgment against a debtor who is one of two or more joint tenants of that immovable
property.
o This is because O 47 r 4(1), ROC requires a “distinct and identifiable interest” and a Writ of Seizure and Sale
does not constitute severance of a joint tenancy.
o Hence, must appoint a receiver under O 51, ROC, or a charging order.
 Note: if the property is a tenancy-in-common:
o Although there is a “distinct and identifiable interest” for the purpose of O 47 r 4(1), ROC, the sheriff may only
seize but cannot sell the property.
o Hence, more appropriate to appoint a receiver under O 51, ROC.
 Note: if the property is about to be sold, then garnishee proceedings against the purchaser for the purchase price.
 Note: If the property is mortgaged/under a CPF charge, those will take priority, and the permission of the
mortgagee/CPF Board may be needed before the property can be sold.
o Paragraph 69(2), Supreme Court Practice Directions: If immovable property is subject to a mortgage, the
sheriff can only proceed with the sale if he obtains the consent of the mortgagee.

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9. APPELLATE PROCEDURE
INTRODUCTION
 What is an appeal?
o It is the process by which party seeks to reverse, set aside, or vary an order made in the lower court because
the party claims that the court below has erred.

TYPES OF APPEAL

APPEALS FROM REGISTRAR  DISTRICT JUDGE IN CHAMBER

 O 56 r 1(1), ROC: Appeal shall lie to a District Judge in Chamber from any judgement, order or decision of the Registrar.
 O 56 r 2, ROC: Notice of Appeal in Form 113, which will specify the date to attend the appeal.
o O 56 r 3, ROC: Notice must be issued within 14 days after judgment, order or decision appealed against, and
must be served on all other parties within 7 days of its issue.

APPEALS FROM SUBORDINATE COURTS  HIGH COURT

 O 55C, ROC deals with appeals from District Judges in Chambers and O 55D, ROC which deals with all other appeals
from the Subordinate Courts to the High Court.
 Appeals from District Judge in Chambers.
o O 55C r 1, ROC: Appeal shall lie to a judge of the High Court in Chambers from any judgement, order or
decision of the District Judge in Chamber (not given or made in his capacity as a Registrar).
o Notice of Appeal must be issued within 14 days after judgment, order or decision appealed against, and must
be served on all other parties within 7 days of its issue.
 Appeals from the Subordinate Court.
o s 21(1), Supreme Court of Judicature Act: Right to appeal if amount (excluding interest and costs) exceeds
$50,000.
 Leave to appeal will be required in any other case.
o Any order granting/refusing leave to appeal to the High Court shall be final.
o Non-appealable interlocutory matters to the High Court – see Third Schedule, Supreme Court of Judicature
Act:
 Granting leave to defend unconditionally.
 Granting leave to defend conditionally – but defendant may appeal the conditions attached.
 Setting aside default judgment unconditionally.
 Setting aside default judgment with conditionally – but defendant may appeal the conditions
attached.
 Costs.
o Costs follow the event, normally “costs of the appeal here and below to the [winning party]”.

APPEALS FROM HIGH COURT  COURT OF APPEAL

APPELLATE JURISDICTION OF THE COURT OF APPEAL: WHAT MAY OR MAY NOT BE APPEALED?
 3 scenarios: [1] No appeals allowed, [2] appeal without leave (automatic as of right), and [3] appeal with leave.
o Anything that does not fall within these schedules may be appealed as of right.
 s 34(1), Supreme Court of Judicature Act: No appeal allowed for the following:
o (a) Order made falls under the Fourth Schedule, except as allowed in it.
 Granting leave to defend unconditionally.
 Granting leave to defend conditionally – but defendant may appeal the conditions attached.
 Setting aside a default judgment unconditionally.
 Setting aside a default judgment conditionally – but defendant may appeal the conditions attached.
 Refusing to strike out an action/a pleading.
 Giving leave to amend a pleading – except if leave is made after expiry of period, or amendment is to
correct name, alter capacity, or add/substitute a new cause of action.
 Giving/refusing further and better particulars.
 Giving/refusing interrogatories.
 Refusing security for costs.
o (d) Judgment/order is made by consent of the parties.
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 o (e) Judgement/order of the High Court is expressly declared to be final by written law.
 s 34(2), Supreme Court of Judicature Act: Appeal with leave for the following:
o (a) Amount in dispute is less than $250,000.
o (b) The only issue relates to costs or fees.
o (c) Summary judgment on an interpleader summons where the facts are not in dispute.
o (d) Order made falls under the Fifth Schedule, except as allowed in it.
 Refusing leave to amend a pleading – except if leave is made after expiry of period, or amendment is
to correct name, alter capacity, or add/substitute a new cause of action.
 Giving security for costs.
 Giving/refusing discovery or inspection of documents.
 Refusing a stay of proceedings.
 Order at the hearing of interlocutory matters – summary judgment, setting aside a default judgment,
striking out, dismiss action, further and better particulars, leave to amend a pleading, security for
costs, discovery or inspection of documents, variation and withdrawal of interrogatories, leave to
serve interrogatories, stay of proceedings.
o (e) Order of the High Court made in the exercise of its appellate jurisdiction under the Adoption of Children Act
or certain parts of the Women’s Charter.

PRINCIPLES TO GRANTING LEAVE TO APPEAL

 No leave to appeal granted where issue was one of fact.
 Leave to appeal may be granted if:
o Error of law.
o Question of law decided for the 1st time.
o Question of law for the advantage of the public.
o Question of law where there is a conflict of authority.
o Abdul Rahman v Abdul Salim (1999)
 HELD: Not easy to get leave to appeal unless it shows a question of law.
 Any order granting/refusing leave to appeal to the Court of Appeal shall be final.
 The High Court judge hearing the interlocutory application shall also hear the leave to appeal application.

STAGE 1: NOTICE OF APPEAL

 O 57 r 3, ROC: Notice of Appeal in Form 119, together with a deposit ($15,000 for interlocutory appeals and $20,000 for
other appeals) to serve as a security for the respondent’s costs, followed by a Form 116 certificate by a Registrar
confirming the deposit or a solicitor’s undertaking in Form 116 + a Form 117 certificate confirming the deposit.
 O 57 r 4, ROC: Notice of Appeal must be filed within 1 month from date of judgment, order or decision appealed
against.

EXTENSION OF TIME FOR NOTICE OF APPEAL

 AD v AE (2004)
o HELD: 4 factors when determining whether an extension of time should be granted to a party to either file or
service a Notice of Appeal out of time:
 [1] The length of the delay.
 [2] The reason for the delay.
 [3] The chance of the appeal succeeding if the time for appealing was extended.
 [4] The degree of prejudice to the would-be respondent if the application for extension was granted.
 Anwar Siraj v Ting Kang Chung (2010)
o HELD: Affirmed the 4 factors, and held that application to extend time if made before expiry of period must be
made to the High Court, and if after expiry, must be made to the Court of Appeal.

AMENDMENT OF NOTICE OF APPEAL

 Projector SA v Marubeni International Petroleum (s) Pte Ltd (No 2) (2005)
o HELD: Court of Appeal held that a court should generally be inclined to grant the amendment unless the
circumstances were such that the opposing party would sustain grave prejudice or hardship (not mere
inconvenience) that could not be compensated by costs.
 If the prejudice can be compensated by an order as to costs, then the amendment should be granted.

STAGE 2: RECORD OF PROCEEDINGS

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  O 57 r 5, ROC: Upon filing of notice of appeal, the judge must certify in writing the grounds of his judgement within 6
months, failing which the appellant can still proceed and apply in writing to the Registrar for record of the proceedings.
o O 57 r 5(2), ROC: Upon filing of notice of appeal, the Registrar shall serve on the appellant that a copy of the
record of the proceedings is available.
o O 57 r 5(3), ROC: Record of the proceedings shall comprise:
 Certified copy of the judgment/grounds of judgment.
 Certified transcript of the official record of hearing taken at the hearing.

STAGE 3: APPELLANT’S/RESPONDENT’S CASE

 Within 2 months after service of the Registrar’s notice that the record is available, the appellant must file:
o [1] O 57 r 9(2), ROC: Record of Appeal, which contains:
 Notice of Appeal.
 Certificate of payment of security of costs.
 Record of proceedings.
 Affidavits of evidence-in-chief.
 Documents in the nature of pleadings.
 Other documents, so far as relevant to the matter decided and the nature of the appeal.
 Judgement or order appealed from.
o [2] O 59 r 9A(3), ROC: Appellant’s (or respondent’s) case, which shall state, as concisely as possible:
 Circumstances out of which the appeal arises.
 Issues arising in the appeal.
 Contentions and arguments.
 Authorities in support these contentions and arguments.
 Reasons for (or against (if respondent)) the appeal.
 If a party intends to abandon any point taken in the court below, or intends to apply for leave to
introduce a new point not taken in the court below, it must be clearly stated.
o [3] Core bundle of documents.
 Copy of the grounds of the judgment or order.
 Other documents – e.g. notes of evidence, pleadings, affidavits, etc.
 Judgment or order appealed from.
 Index of documents.

WITHDRAWAL OF APPEAL
 O 57 r 11, ROC: At any time before the appeal is called on for hearing, the appellant may file and serve on the parties to
the appeal a notice to the effect that the appellant does not intend to further prosecute the appeal.
o If all parties consent, the appellant must file the documents signifying such consent and the appeal will be
deemed to be withdrawn.

EXPEDITED HEARINGS
 O 57 r 20, ROC deals with how directions may be given by the Judge below or the Judge of Appeal for an expedited
hearing in cases of urgency.
o The court tends to be strict in their exercise of discretion.
o Such application may be made at any stage of the proceedings.

THE APPEAL
 Appeal is rehearing.
o On appeal, the practice is for the judge to rehear the application as if he were sitting at first instance.
o Rehearing means reviewing the same evidence but rehearing the witnesses as it for the first time.
 Role of the appellate court.
o Court will intervene to rectify decision on errors of law.
 Court is less likely to intervene on findings of fact, unless the issue is proper inference from facts.
o Court is unlikely to intervene on an award of damages, unless the wrong principle of law is applied or there is a
misapprehension of facts.
 Introducing new evidence.
o Generally, no additional evidence can be adduced in an appeal, unless the court grants leave.
o Court will likely grant leave if:
 [1] The additional evidence sought to be introduced does not raise any new issues.
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  Note: If the new issues should or ought to have been raised at the hearing below when
ample opportunity had been given to the appellant, then the appellate court is unlikely to
grant leave.
 [2] The additional evidence raises new issue that arises after the date of the decision from which the
appeal is brought.
o Ladd v Marshall (1954)
 HELD: Court set out 3 principles for the court to consider when deciding to admit new evidence:
 [1] Evidence could not have been obtained with due diligence for use at the trial.
 [2] Evidence would probably have an important influence on the results.
 [3] Evidence must be believable (i.e. credible) but need not be incontrovertible.
 Note: Singapore Court of Appeal has approved of Ladd v Marshall in Lassiter Ann Masters v To Keng
Lam (2004), and held that it does not have an unfettered discretion to receive further evidence on
appeal unless it falls within the “special grounds”.
 O 57 r 13, ROC specifically provides for “special grounds” for the admission of fresh evidence
before the Court of Appeal.
o However, there are no similar provisions governing the admission of fresh evidence
before the Judge in Chamber hearing an appeal from the Registrar.
 Jurong Town Corp v Wishing Star Ltd (2004)
 HELD: Court of Appeal held that Ladd v Marshall does not apply to an interlocutory appeal.
Instead, the court may exercise its discretion more liberally.
 WBG Network v Sunny Daisy (2007)
 HELD: Court noted that the existence of a wider discretion does not mean that Ladd v
Marshall cannot apply, but means that the court hearing the matter can decide whether the
facts justified the application of Ladd v Marshall.
 Raising new point.
o Court of Appeal generally refrains from allowing a new point on appeal, particularly if the circumstances as
such that the Court of Appeal is not in as advantageous a position as the trial court to adjudicate on the issue.
o AG v Pang Ah Yew (1934)
 HELD: Such points must be “jealously scrutinised” and must be satisfied beyond doubt.
 Ordering new trial.
o O 57 r 14, ROC: A new trial may be ordered if substantial wrong has been occasioned by some misdirection,
improper admission or rejection of evidence.
o Generally, the Court of Appeal will be reluctant to intervene.
 Error must be of sufficient gravity such that had it not been made, the decision would be different.
 O 57 r 15, ROC: An appeal does not operate as a stay of execution unless the court otherwise orders.
o E.g. if threat of not allowing a stay is insolvency, the consequences at debilitating, then stay may be granted.
 Procedure.
o O 57 r 16, ROC: All applications to the Court of Appeal shall be either by way of an originating summons or by
way of summons.
o O 57 r 19, ROC: Judgment of the Court of Appeal is delivered in open court, either on the conclusion of the
hearing of the appeal or on a subsequent day of which notice shall be given by the Registrar to the parties.
 Further arguments.
o Court of Appeal will not receive further arguments after the conclusion of the appeal hearing unless in “very
exceptional circumstances” because it is “undesirable” – the arguments should have been made at the hearing
proper.
o See the Supreme Court Practice Directions 2006.
 “Very exceptional circumstance” – e.g. if an authority not available at the hearing would be decisive.
 If party is of the view that such circumstances exist, he must seek the consent of the other
parties to the request, and must furnish the request to them.
 All requests for further arguments shall be made within 1 week by way of letter, and include:
 Party making the request.
 Identify the Judges constituting the Court of Appeal who heard the matter.
 Specify when the order was made.
 State the very exceptional reasons which justify the request.
 State whether the other parties consent to the request.
 Set out the proposed further arguments briefly (and include the relevant authorities).

WHERE PARTIES FAIL TO APPEAR

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 O 57 r 18, ROC: Where appellant fails to appeal, the appeal may be dismissed. If respondent fails to appear, the appeal
shall proceed unless the court sees fit to adjourn the hearing for any sufficient reason.
o Where any appeal is dismissed/allowed by reason of non-appearance of any party, the absent party may apply
to the Court of Appeal for the rehearing of the Appeal.
o If the Court of Appeal is persuaded that there were sufficient reasons for such absence, the appeal may be
restored for rehearing upon terms (e.g. payment of costs).

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10. OTHER ORIGINATING PROCESSES
PROCEEDINGS FOR & AGAINST THE GOVERNMENT
 The ROC applies to the government in the same way as suits against private persons.
o Subject to the Government Proceedings Act.
 s 18, Government Proceedings Act: Subject to the provisions of this Act, the provisions of the written
law relating to procedure shall apply to civil proceedings by or against the Government in the same
way as to suits between private persons.
 Differences in substantive law.
o Causes of action.
 The government is liable in tort for wrongful acts done by a public officer.
 s 5, Government Proceedings Act equates the government’s liability with that of a principal-agent.
o Caveat to s 5, Government Proceedings Act.
 s 7, Government Proceedings Act: No action except for breach of contract on account of anything
done/omitted/refused to be done by a public officer in “exercise of public duties”.
 s 7(2), Government Proceedings Act defines “exercise of public duties” as:
o Construction, maintenance, diversion and abandonment of railways/roads/bridges,
schools/hospitals/public buildings, drainage/flood prevention/reclamation, channels
of rivers/waterways, etc.
 Swee Hong Investment v Swee Hong Exim (1994)
o HELD: This caveat provision should be read restrictively – the public duties excepted
from the general liability in s 5, Government Proceedings Act should be only those
enumerated in s 7(2), Government Proceedings Act.
 Differences in procedural law.
o O 73 r 4(1), ROC: No set-off/counterclaim in proceedings by the government for recovery of taxes, duties, or
penalties.
o O 73 r 4(2), ROC: No set-off/counterclaim in other proceedings without leave of court.
o O 73 r 5, ROC: No summary proceedings against the government.
o O 73 r 7, ROC: No judgment in default of appearance/pleading against the government without leave.
o O 73 r 8, ROC: No third party notice shall be issued against the government without leave of court.
o O 73 r 12(1), ROC: No enforcements via O 45, ROC to O 52, ROC.
o s 27(1), Government Proceedings Act: The court shall not grant injunction, specific performance, order for
recovery, or delivery of property against the government – but may make a declaratory order.
o s 34(1), Government Proceedings Act and O 73 r 10, ROC: Discovery.
 Government can be ordered to give discoveries and interrogatories.
 But only by order of court, and only where the government is party to the proceedings.
 Also, subject to any law authorising the withholding of document because disclosure is injurious to
public interest.
 Also, subject to relevant immunities under the Evidence Act.
 Parties.
o Civil proceedings by the government may be commenced by the authorised government department or by the
Attorney-General.
o Civil proceedings against the government shall be commenced against the appropriate government
department or against the Attorney-General.
 When instituted against the government department, the department may apply to substitute the
Attorney-General (and vice versa).
 s 24, Government Proceedings Act: A legal officer may appear as advocate on behalf of the
government, or a public officer, or in personal capacity if the Attorney-General represents in writing
that it is in the public interest.
 s 19(5), Government Proceedings Act: Change in person holding office as the Attorney-General or in
persons constituting the department does not abate the action.

ORIGINATING SUMMONS
 When to file an originating summons?
o O 5 r 4(2), ROC: When there is unlikely to be any substantial dispute of fact.
o O 5 r 3, ROC: Any application under any written law if mode is not specified – e.g. applications under
Companies Act.
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 o O 5 r 4, ROC: Construction of written law or instrument, or questions of law.
 Form.
o O 7 r 2, ROC: Must be in Form 4 or 5, whichever is appropriate – e.g. inter partes or ex parte.
 Contents of originating summons.
o O 7 r 3, ROC: Must contain statement of question for determination or concise statement of relief claimed,
with sufficient particulars to identify a cause of action.
 Duration of validity and renewal.
o Same as that of a writ.
 Service.
o O 28 r 3(1), ROC: If inter partes, plaintiff to file and serve within 7 days of service of originating summons.
o O 28 r 3(2), ROC: If ex parte, affidavit to be filed at the time of filing the originating summons.
o O 28 r 3(3), ROC: Defendant must file and serve within 21 days therefafter.
 Hearing.
o If inter partes, after defendant’s affidavits are filed, or when time for filing affidavit has expired.
o If ex parte, hearing date is fixed on plaintiff’s application, subject to time for filing affidavits.
o Hearing is in chambers.
o Parties may apply for cross-examination.
o Defendant may counterclaim, and court may give directions for the hearing of the counterlciam.
 What if the originating summons has been wrongly filed?
o O 28 r 8, ROC: Conversion of originating summons to writ of summons.
 Refer to Modes of Commencing Civil Proceeding in Chapter 2 – Before Commencement of
Proceedings.
 Failure to prosecute proceedings with despatch.
o O 28 r 10, ROC: If plaintiff does not comply with any order/direction of the court, or if the court considers the
plaintiff not to be prosecuting the proceedings with due despatch, the court may dismiss the action or make
any order as may be just.
 This is because inordinate, inexcusable delay causes substantial risk to fair trial or prejudice to the
defendant (Halls v O’Dell 2 (1992).

JUDICIAL REVIEW
 Judicial review is the process by which the High Court exercises its supervisory jurisdiction over the proceedings of
inferior courts, tribunals and other bodies/person who carry out quasi-judicial functions or are charged with the
performance of public acts and duties.
o Chng Suan Tze v Minister of Home Affairs (1988)
 HELD: All power has legal limits and the rule of law demands that the courts should be able to
examine the exercise of discretionary power.
 Jurisdiction provided for in:
o s 18(2) read with Paragraph 1, First Schedule, Supreme Court of Judicature Act.
 Power to grant orders for the enforcement of rights – e.g. mandatory order, prohibitory order,
quashing order.
o s 18(2) read with Paragraph 14, First Schedule, Supreme Court of Judicature Act.
 Power to grant all relief and remedies at law and in equity – including power to grant a declaratory
order.
 Whose decisions may be reviewed?
o Public bodies derived from or performing duties pursuant to statutes.
 Public Service Commission v Lai Swee Lin Linda (2001)
 Defendant applied for a quashing order against her employer’s decision to extend probation,
and a mandatory order to reinstate her employment.
 HELD: 2 test to determine whether decision is susceptible to judicial review:
o [1] Source of power that is exercised in making the decision.
o [2] Nature of the power exercised (as per R v Panel on Take-overs and Mergers, Ex
parte Datafin plc (1987)).
 On the facts, the court held that the matter was governed by private contract of employment
and not public law, even though the plaintiff was a statutory authority and powers exercised
in relation to the defendant’s employment was conferred by statute.
o When will decisions not be reviewed?
 Persons carrying out a private duty (Re Fong Thin Choo (1991).
 Public authority carrying out a private function – e.g. contract (Chan Man Poy v Director General of
Telecommunication (1981)).
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  Payment is ex gratia (Seah Hong Say v Housing and Development Board (1992)).
 Restricted by statute – e.g. s 56(5), Housing and Development Act.
 But ouster clauses are not absolute, and must be read subject to the rules of natural justice
(Stansfield Business School v Minister of Manpower (1999)).
 Re Yee Yut Ee (1978)
o HELD: Parliament could not have intended at a tribunal of limited jurisdiction should
become a law unto itself such that it could determine the limits of its own authority
without possibility of correction by a superior court.
o I.e. ouster clauses that expressly removes the right to apply for judicial review is not
absolute, and Singapore courts can still issue remedies.
 Grounds for judicial review.
o Illegality – whether decision has strayed beyond the bounds of conferred power of the authority.
 PP v MM Pillay (1973)
 HELD: Singapore courts adopted a broad approach to the “legislative purpose” test –
administrative decision did not have to directly relate to the legislation’s purpose, but merely
be “incidental thereto”.
 This effectively gives the public body great latitude to manoeuvre and formulate means
which may have only a bare nexus with the legislative purpose.
o Irrationality – whether decision is so unreasonable as to deviate from substantive principles such that no
sensible person could ever dream that it lay within the conferred power of the authority.
 Kang Ngah Wei v Commander of Traffic Police (2002)
 Plaintiff argued that the defendant’s decision to revoke her licence on grounds of her
asthmatic condition was irrational and unreasonable.
 HELD: Singapore courts adopted the Wednesbury unreasonableness standard of irrationality
– i.e. they can “set aside an administrative decision which has failed to give adequate weight
to a relevant factor of great importance or has given excessive weight to a factor of no great
importance”.
o Procedural impropriety – whether decision was procedurally non-compliant with the common law principles of
natural justice and the statutory mandated requirement of procedural fairness.
 Kay Swee Pin v Singapore Island Country Club (2008)
 HELD: Duty to act fairly involves a duty to act impartially. Procedural fairness means decision-
maker should not be biased or prejudiced such that it precludes a genuine and fair
consideration being given to the arguments or evidence presented by the parties.
 2 limbs of natural justice – [1] the rule against bias, and [2] the right to be heard.
 With regard to [1], the rule covers actual bias, imputed bias (if there is personal or pecuniary
interest in the matter) and apparent bias (if decision is objectively perceived to be biased).
 With regard to [2], the rule requires adequate notice of a charge, fair and proper conduct of
the hearing (e.g. fair opportunity to make representations), right to cross-examination, right
to legal representation, and the duty to give reasons for the decision.
o (Possibly) proportionality – whether decision went beyond what is necessary to achieve desired results.
 Chan Hiang Leng Colin v Ministry of Information and the Arts (1996)
 Plaintiff argued that a blanket ban of his publications were disproportionate because not all
were contrary to public interest.
 HELD: Court was careful to say only that it was “not well established” and “questionable”
whether proportionality existed as an independent ground for judicial review or was simply a
facet of irrationality, but did not foreclose the possibility of adopting the principle of
proportionality in an appropriate case.
 Procedure.
o Apply for leave – leave of court is necessary (O 53 r 1(1), ROC).
 Rationale – to filter out groundless cases and prevent wastage of time and resources, and to protect
the public bodies from harassment, whether intentional or otherwise (Kang Ngah Wei v Commander
of Traffic Police (2002)).
 O 53 r 1(2), ROC: Application by ex parte originating summons supported by statement setting out the
relief sought and grounds for judicial review.
 Tests on application for leave.
 [1] Whether there is an arguable case, or prima facie case of reasonable suspicion.
o Court should not examine the merits of the matter.
o Chan Hiang Leng Colin v Ministry of Information and the Arts (1996)
 HELD: What is required is not a prima facie case, but merely a “prima facie
case of reasonable suspicion” (i.e. an arguable case).
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  [2] Whether applicant has locus standi – must have “sufficient interest” in the matter.
o George John v Goh Eng Wah Bros Film Sdn Bhd (1988)
 HELD: The extent of sufficient interest depends on – the content and intent
of the statute of which contravention is alleged, the nature of the breaches
of statutory power, the specific circumstances of the case, the nature and
extent of the applicant’s interest or grievance, the nature and extent of the
prejudice or injury suffered by him.
 O 53 r 1(3), ROC: Serve on the Attorney-General.
 O 53 r 1(4), ROC: Judge may impose security as he thinks fit.
 O 53 r 1(5), ROC: Grant of leave operates as a stay.
o Apply for prerogative order.
 O 53 r 2(1), ROC Application by summons in the originating summons in which leave was given.
 There must be at least 8 clear days between service of the summons and the day named for
the hearing.
 O 53 r 2(2), ROC: Leave lapses after 14 days.
 O 53 r 2(3), ROC: Serve on all parties directly affected.
 O 53 r 2(4), ROC: Affidavit must be filed before the hearing.
o Hearing.
 O 53 r 3(1), ROC: No grounds/relief other than those set out in the statement.
 O 53 r 3(2), ROC: Court may allow statement to be amended.
 O 53 r 3(3), ROC: Every party to the application must serve a copy of the affidavits which he proposes
to use at the hearing on every other party.
 O 53 r 4, ROC: Any proper person not served but desires to oppose shall be heard.
 Cross-examination generally not allowed, unless the court believes that it is necessary in order for
justice to be done between the parties (Re Singh Kalpanath (1992)).
 Reliefs are discretionary.
o Court has discretion to refuse leave/relief even when it has been shown that the public body acted unlawfully.
o Court must consider:
 Conduct of the applicant, any non-disclosure, any delay, etc.
 Alternative remedies, whether they are exhausted, prejudice suffered, etc.
 3rd party interests.
o Applicant may pray for declaratory relief in addition to prerogative reliefs.
o Applicant may also seek damages or private law remedies.

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11. COSTS (FOR CONTENTIOUS
BUSINESS)
INTRODUCTION: WHAT ARE COSTS?
 No exhaustive definition in the ROC.
o O 59 r 1(1), ROC: “Costs” includes fees, charges, disbursements, expenses, remuneration.
 Costs vs. damages – they are not the same.
o Costs are the expenses incurred in pursuing a case against another party – it is for work done.
o Damages are the monetary compensation for the loss caused to a party by another party’s breach.
 Receiving party vs. paying party.
o Receiving party – the party to whom costs are payable.
o Paying party – the party who is liable to pay costs.
 Party-and-party (P&P) costs vs. solicitor-and-client (S&C) costs.
o P&P costs – costs that are payable by one party in a litigation case to the other party.
 Usually standard basis, but indemnity basis can apply too.
o S&C costs – costs that are payable by a party to his own solicitor.
 Usually indemnity basis except for non-contentious business.

DIFFERENT BASES OF TAXATION

 Taxation = assessment of costs, e.g. if the parties do not agree.
 2 main bases of taxation – difference between them lies in the resolution of any doubts about reasonableness.
o To resolve in favour of one party does not mean invariably accepting it at face value – both bases are founded
on the concept of reasonableness, hence, if the taxing Registrar finds that the costs claimed were [1] not
reasonably incurred, or [2] not reasonable in amount, then those costs will be disallowed.
 Lin Jian Wei v Lim Eng Hock Peter (2011)
 HELD: Principle in the ROC refers only to the burden of proof – it does not mean that a taxing
Registrar should invariably accept whatever is claimed by the receiving party at face value.
 Only in matters where the court is still left in real doubts at the end of a searching (and
rigorous) review process should doubts about reasonableness be resolved in favour of the
particular party.
o Indemnity costs estimated at one-third more than standard costs – but this is “not a hard and fast rule”.
 Lin Jian Wei v Lim Eng Hock Peter (2011)
 HELD: Although there is a general practice whereby costs assessed on an indemnity basis are
taken to be usually one-third more than that assessed on a standard basis, it is not a hard
and fast rule which applies invariably.

Standard basis Indemnity basis

What? Reasonable amount for all costs reasonably incurred Reasonable amount for all costs reasonably incurred
When? O 59 r 27(1), ROC: Standard basis is the default unless [1] The agreement between the parties is that costs
the ROC direct otherwise or the circumstances of the should be recovered from the paying party on the
individual case make it appropriate to order costs to indemnity basis (United Overseas Bank Ltd v Sin Leong
be taxed on the indemnity basis. Ironbed and Furniture Manufacturing Co (Pte) Ltd
(1988)), but court may depart from the contractual
O 59 r 27(4), ROC: When court makes an order for arrangement in an appropriate case (e.g. if receiving
costs without indicating which basis. party is guilty of misconduct) (Turner v Hancock
(1882), Gomba Holdings (UK) Ltd v Minories Finance
Ltd (No 2) (1992)).

[2] There are exceptional circumstances or in a special

case – e.g. indemnity costs ordered when a party
acted unreasonably or cause tremendously delay (Teo
Siew Peng v Neo Hock Peng (1999), Tjong Very Sumito
v Antig Investments (2009)).

[3] Solicitor-and-client (S&C) costs – a solicitor ought

to be reimbursed in full for work done for the client.
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Resolution O 59 r 27(2), ROC: There shall be a reasonable amount O 59 r 27(2), ROC: All costs shall be allowed except in
of doubts? in respect of all costs reasonably incurred and any so far as they are of an unreasonable amount or have
doubts which the Registrar may have as to whether been unreasonably incurred and any doubts which
the costs were reasonably incurred or were the Registrar may have as to whether the costs were
reasonable in amount shall be resolved in the favour reasonably incurred or were reasonably in amount
of the paying party. shall be resolved in the favour of the receiving party.
 But 3rd uncommon basis for costs awarded to a lay person, where neither standard nor indemnity bases would apply:
o [3] Compensatory costs.
 O 59 r 18A, ROC: A lay person is entitled to compensatory costs which would reasonably compensate
the litigant for the time expended by him, together with all expenses reasonably incurred.

ENTITLEMENT TO COSTS
 An entitlement to costs will usually arise under:
o Legislation – e.g. O 59 r 10, ROC (discontinuation of action), O 59 r 31, ROC (costs as per scale).
o Contract – usually arises between solicitors and clients by application of s 120(3), Legal Profession Act, and
may also be between 2 parties to a litigation as well.
o Judgment/order of the court – most common.

JUDGMENT/ORDER OF THE COURT

 Cost orders usually made under the general power in O 59 r 2(2), ROC.
o O 59 r 2(2), ROC: Costs are in the discretion of the court, and the court shall have full power to determine by
whom and to what extent the costs are to be paid.
o Matters to be decided by the court before making an order for costs:
 Who should pay the costs?
 What costs should be awarded?
 What type of costs should be awarded (i.e., fixed costs, taxed costs, or costs as per scale)?
 If taxed costs, what is the basis of taxation?
o Note: Orders in relation to S&C costs are also made under s 120(1), Legal Profession Act.
 Factors to consider when making a cost order.
o O 59 r 7(2), ROC: Court shall have regard to the following when making an order for costs:
 [1] Omission to do anything the doing of which would have been calculated to save costs.
 [2] Doing of anything calculated to occasion unnecessary costs.
 [3] Any unnecessary delay in the proceedings.
 Note: Examples of the discretion exercised in costs orders:
 Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd (1951)
o HELD: Plaintiff with nominal damages treated as loser, so costs ordered against him.
 VH v HI (2008)
o HELD: Although respondent successfully resisted an anti-suit injunction, the court
refused to award costs because he deliberately applied to the Swedish court for a
divorce decree despite knowing of the anti-suit injunction application.
 Parno v SC Marine Pte Ltd (1999)
o HELD: Plaintiff succeeded to the extent of two-thirds, but full costs were awarded to
him so long as he had substantially succeeded.
 Costs may be dealt with at any stage, and must be paid forthwith.
o O 59 r 4(1), ROC: Costs may be dealt with by the court at any stage of the proceedings, or after the conclusion
of the proceedings. Any costs ordered shall be paid forthwith notwithstanding that the proceedings have not
been concluded, unless the court otherwise orders.
 General rule – “costs always follow the event” (i.e. the successful applicant should be given the costs of the
application) unless there are special reasons for depriving the successful litigant of his costs.
o O 59 r 3(2), ROC: Court shall order the costs to follow the event, except when it appears that in the
circumstances of the case some other order should be made as to the whole or any part of the costs.
 Tullio Planeta v Maoro Andrea G (1994), Wing Joo Loong Ginseng Hong (Singapore) Co Pte Ltd v
Qinghai Xinyuan Foreign Trade Co Ltd (2009)
 HELD: A successful party who acted neither improperly nor unreasonably ought not to be
deprived of any part of his costs.
 Where the winning party is blameworthy, costs do not follow the event.
 E.g. if the winning party applied for amendment, he would still have to pay costs to the loser
(at the main trial) because it is the winning’s party fault that amendment was necessary.
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  E.g. if judgment in default of appearance/defence is given in favour of the plaintiff, then even
if the defendant succeeds in setting aside the judgment and becomes the winning party at
the main trial, it is his fault that the judgment in default was necessary.
o Costs follow the event, but paid by someone else.
 If the plaintiff is unsuccessful against one defendant but is successful against another, a Bullock or
Sanderson order may be made.
 Bullock order – e.g. successful defendant’s P&P costs paid by the unsuccessful defendant
through the partially-successful plaintiff.
 Sanderson order – e.g. successful defendant’s P&P costs paid directly by the unsuccessful
defendant.
 Why should another party pay costs?
 Chua Teck Chew Robert v Goh Eng Wah (2009)
o HELD: In deciding whether to grant a Sanderson order, the principle consideration
for the court is whether it would be fair and reasonable for the unsuccessful
defendant to bear the costs of the successful defendants.
o On the facts of the case, the unsuccessful defendant tried to shift blame to the
other two defendants, who in turn denied responsibility and pinned the blame back
on the unsuccessful defendant. Thus, it was reasonable for the plaintiff to also have
sued the other co-defendants, and it was fair and reasonable for the unsuccessful
defendant to bear their costs.
o Note: If a plaintiff succeeds in his claim against the defendant, and the defendant succeeds in his counterclaim,
the general rule will still apply – the plaintiff will be awarded costs of the claim, and the defendant will be
awarded the costs of the counterclaim (Medway Oil and Storage Company Limited v Continental Contractors
Limited (1929).

OTHER COMMON ORDERS FOR COSTS, AS DEFINED IN O 59 R 1(3), ROC

 “Costs to the party”.
o O 59 r 4, ROC: Entitles the winning party to tax costs forthwith.
o O 59 r 3(2): Follows the general rule (where costs follow the event).
 “Costs reserved”.
o Where the court does not wish to make final determination as to costs – e.g. if the court is unclear as to the
“event” or if the costs were really reasonable.
o If there are no subsequent order, then “costs in the cause”.
 “Costs in any event”
o Same as the usual cost order (i.e. “costs follow the event”), but these costs are taxed after the conclusion of
the cause or matter.
 C.f. “costs in the cause”, the costs here is not tied to the winning party, but merely delayed for the
mentioned party.
o Made when desirable not to have taxation forthwith.
 “Costs here and below”.
o Costs of proceedings before the current court/tribunal and in any lower court/tribunal.
o Often made for successful, fully meritorious appeal.
 “Costs in the cause”/”costs in the application”.
o Usual order when event which resulted in costs being incurred is a normal incident of litigation with no clear
fault of either party (e.g. O 14, ROC).
 I.e. when no one is right or wrong in the application.
 In an interlocutory application where there is no decision on the merits by the court, then costs is in
the cause – see Chiarapurk Jack v Haw Par Brothers International Ltd (1993).
o The eventual costs will then be tied to the winning party at the end.
o Note: Different from “plaintiff’s costs in the cause” or “defendant’s costs in the cause”.
 In these scenario, the plaintiff/defendant shall receive such costs if he is the winning party.
 If not, he shall not be liable to pay such costs.
 “Costs thrown away”.
o Usually made when costs is wasted by action of one party, or when costs must be incurred again by the party
not at fault – e.g. if there is substitution (not addition) of a cause of action.
o Desirable to have order further defined to avoid doubt.
 “No order as to costs”.
o Each party bears its own costs – no exchange of P&P costs.

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QUANTIFICATION OF COSTS
 3 types of quantification of costs:
o [1] Taxed costs.
 O 59 r 9(1), ROC: Unless otherwise specified, an order for costs is an order for taxed costs.
 Refer to below for procedure for taxation.
o [2] Fixed/lump sum costs.
 O 59 r 9(4), ROC: Court may order a fixed/lump sum costs in lieu of taxed costs if it thinks fit.
 Usually ordered when:
 [1] Prescribed by legislation – e.g. O 59 r 31(2), ROC and Appendix 2 to O 59, ROC.
o Final judgment in default of appearance.
o Final judgment in default of defence.
o Final judgment under O 14, ROC.
 [2] When the court thinks it appropriate.
o It would assist in avoiding the expense, delay and aggravation involved in a
protracted litigation arising out of taxation – see Leary v Leary (1987).
o A taxing Registrar would not be in a better position than the courts to assess the
costs – see Wong Yit Shing v Sim Teow Gok & Co (1994)
o Note: In usual applications for discovery or F&P, costs are fixed (never taxed)
because taxation is a laborious process.
 A fixed/lump sum costs may be fixed on a standard or indemnity basis.
o [3] Scaled costs.
 E.g. for judgment in default of appearance/defence, summary judgment, disposal of case on point of
law, garnishee proceedings.
 Refer to Appendix 2 of O 59, ROC.

PROCEDURE FOR TAXATION

 Taxation is a quantification process – however, it is very laborious in practice.
o If parties agree on costs, then there is no need for taxation.

ENTITLEMENT TO TAXATION OF COSTS

 When does taxation occur?

o Note: There must be an “entitlement” to require costs to be taxed – this is not the same as entitlement to
costs.
o [1] When the court has directed taxation.
o [2] When both the solicitor and client consents to taxation of the solicitor’s bill of costs.
o [3] When the party liable to pay the bill of costs obtains an order for taxation within 1 year from delivery of the
bill of costs.

LODGEMENT OF THE BILL OF COSTS

 O 59 r 20, ROC: A party (usually the receiving party) must begin proceedings for the taxation of entitled costs by lodging
1 copy of the bill of costs at the Registry.

BILL OF COSTS
 O 59 r 24(1), ROC: Form of the bill of costs – must consist of 3 separate sections.
o Section 1 – work done other than for and before taxation.
o Section 2 – work done for and in the taxation of the costs.
o Section 3 – all disbursements incurred in the cause of matter.
 3 formats of the bill of costs – see Supreme Court Practice Direction No 7 of 2005.
o Form 16A (Bill of Costs for Contention Business) – work done in contemplation of trials.
o Form 16B (Bill of Costs for Contention Business) – work done other than for trials (e.g. appeals, applications).
o Form 16C (Bill of Costs for Non-Contention Business).
 Content of the bill of costs.
o Applicant – state the party for whom the bill is filed.
o Nature of bill – state P&P or S&C cost.
o Basis of taxation – standard or indemnity.
o Basis for taxation – judgment/order of court ordering taxation and stating receiving and paying party.

55
PROCEDURE AFTER LODGEMENT OF THE BILL OF COSTS

 O 59 r 21, ROC: Fixed for hearing and Registrar gives receiving party not less than 14 days’ notice of the date and time
appointed for the taxation.
 O 59 r 22(1), ROC: Copies of the bill of costs must be sent to every other party entitled to be heard at the taxation
within 2 days after the receiving party obtains notice of the date and time of the taxation.
 Objections – paying parties may object to the amount claimed in the bill.
o Objections in principle or as to quantum must be indicated by filing and serving a Notice of Dispute (Form 21
(for High Court) and Form 49 (for Subordinate Courts).
o Must be filed at least 7 days before the date fixed by the Registrar for the taxation of the bill.

TAXATION HEARING

 Parties who wish to be heard on the bill must attend before the taxing Registrar on the date fixed for the taxation.
o If taxation is expected to be length and complex, parties may consider applying by letter for a special date for
the hearing – if not, then bill of costs will be taxed on a normal date.

PROCEDURE AFTER TAXATION HEARING

 If parties are satisfied with the costs allowed on the taxation:

o Registrar’s Certificate is prepared, setting out the amount of costs allowed.
o Court fees to be paid on the Registrar’s Certificate.
o Registrar’s Certificate to be signed and sealed and released to the receiving party.
 If bill of costs is withdrawn, the Registry will charge a withdrawal fee.
o Fee may be as high as the full fee payable in respect of the taxed costs, and is subject to a minimum of $50
(Magistrate’s Court), $100 (District Court) and $200 (High Court).

REVIEW BEFORE THE JUDGE

 If any party is dissatisfied with the decision of the Registrar, he may seek a review before a judge.
o O 59 rr 34(1) and (2), ROC: Any party may apply to a judge to review the taxation, within 14 days after that
decision (or such longer time as the Registrar or the court may allow).
 O 59 r 34(3), ROC: Application is made by way of summons.
 At the hearing of the review, the court hears the taxation de novo and is not fettered by the discretion by the Registrar.
o Tan Boon Hai v Lee Ah Fong (2001)
 HELD: The implication of this is that the judge hearing the appeal can made his own determination of
facts, and is not obliged to take the outcome of the determination of facts of the taxation hearing as
weighty as that of a typical appeal.
 Note: The decision now enshrined under O 59 r 35, ROC.
 If still dissatisfied, then appeal.

APPEALS
 s 22(1), Supreme Court of Judicature Act: If the taxation took place in the Subordinate Courts, a party may appeal to the
High Court, and this right to appeal is unrestricted if the “amount in dispute” is more than $50,000.
o If amount is less than $50,000, leave is required.
 Appropriate court to apply to for leave is governed by O 55C r 2, ROC.
 Procedure for appeal is prescribed in O 55C r 1, ROC.
o If party is still dissatisfied, there is further appeal to the Court of Appeal with leave.
 Procedure for appeal is prescribed in O 57, ROC.
 s 34(2)(b), Supreme Court of Judicature Act: If the taxation took place in the High Court, appeal lies to the Court of
Appeal subject to leave.
o Application for leave to be made under O 57 r 16, ROC.
o Procedure for appeal is prescribed in O 57, ROC.

ENFORCEMENT OF THE TAXED COSTS (USING THE REGISTRAR’S CERTIFICATE)

 Generally, a Registrar’s Certificate is not equivalent to a judgment or order for the payment of money.
o Hence, to enforce it, the parties must first obtain judgment in a separate action on the Registrar’s Certificate.
 O 59 r 33, ROC: Specifically, a party may execute on the Registrar’s Certificate where the order granting taxation on an
originating summons contains a submission to pay – see Commercial Bank of Kuwait SAK v Nair (1994).

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PROCEDURE FOR QUANTIFYING COSTS (DURING THE TAXATION HEARING)

3 MAIN FACTORS

 [1] Basis of the taxation – generally, indemnity costs about 1/3 more than standard costs.
o Also, difference in burden for showing reasonableness, and the resolution of doubts as to reasonableness.
 [2] Circumstances relevant to the cause or matter underlying the bill of costs.
o Necessary or proper.
 Francis v Francis and Dickerson (1956), Brush v Bower Cotton & Bower (1993)
 HELD: Correct viewpoint to be adopted by a taxing officer is that of a sensible solicitor sitting
in his chair and considering what is reasonable in the interests of his lay client (who is a man
of means adequate to bear the expense of the litigation out of his own pocket).
 Gundry v Sainsbury (1910)
 HELD: P&P costs should never exceed the receiving party’s S&C costs – naturally, a standard
basis P&P costs cannot exceed an indemnity basis S&C costs.
o Proportionality.
 Lin Jian Wei v Lim Eng Hock Peter (2011)
 HELD: Costs that are plainly disproportionate to the value of the claim cannot be said to have
been reasonably incurred. Hence, proportionality is an element of reasonableness.
 In summary, the approach that should be adopted in taxation is that the court should first
assess [1] the relative complexity of the matter, [2] the work supposedly done against what
was reasonably required in the prevailing circumstances, [3] the reasonableness and
proportionality of the amounts claimed on an item by item basis, and thereafter, assess [4]
the proportionality of the resulting aggregate costs.
o With regard to proportionality, must also consider the amount of time spent by the
solicitor and the seniority of the counsel involved – e.g. proportionality requires the
costs to bear correlation with the work without undue deference to the costs
claimed at a Senior Counsel rate.
o Relevant circumstances – O 59 r 31(1), ROC and in particular, the 6 sets of circumstances specifically
enumerated in Appendix 1 to O 59, ROC.
 [1] Complexity of item or of cause or matter in which it arises and the difficulty or novelty of the
questions involved.
 [2] Skill, specialised knowledge and responsibility required of, and the time and labour expended by,
the solicitor.
 [3] Number and importance of documents (however brief) prepared or perused.
 [4] Place and circumstances in which the business involved is transacted.
 [5] Urgency and importance of the cause or matter to the client.
 [6] Where money or property is involved, its amount or value.
o Lin Jian Wei v Lim Eng Hock (2011)
 HELD: No single consideration in Appendix 1 to O 59, ROC ought to take precedence. In every matter,
there should be careful judgment by reference to existing precedents and guidelines.
 [3] Amounts of costs allowed in respect of similar causes or matters.
o Reasonable quantum is not in vacuo or based solely on the facts of the particular case – instead, must consider
the amount of costs allowed for similar cases.
o See Appendix 2 to O 59, ROC.

COSTS FOR MORE THAN TWO SOLICITORS

 O 59 r 19, ROC: On a P&P taxation, a party is generally entitled to recover the costs of having up to 2 solicitors acting for
him (subject to “reasonableness”) (doing the exact same work), and if the court certifies so, the costs of more than 2
solicitors may also be allowed.
o Requesting party must apply to the court within 1 month from the date of the cost order.
o Stanley v Phillips (1966), as approved in Singapore Airlines Ltd v Fujitsu Microelectronics (Malaysia) Sdn Bhd
(2001) and Colliers International Singapore (Pte) Ltd v Senkee Logistics Pte Ltd (2007)
 HELD: The question is whether the services of more than 1 counsel are reasonably necessary for the
adequate representation of the case.
o Lin Jian Wei v Lim Eng Hock Peter (2011)
 HELD: Court found that the subject matter was not complex, and the work of 6 solicitors and counsel
were done with considerable overlapping.
o Note: In practice, the court will also take into account the solicitors’/the client’s decision to (over)staff the file.

57
  Note: Cannot bill for trainee lawyers.

WHEN PROCEEDINGS BEGAN IN HIGH COURT WHEN IT COULD HAVE BEGUN IN SUBORDINATE COURTS

 s 39, Subordinate Courts Act, O 59 r 27(5), ROC: If proceedings are commenced in the High Court which could have
been commenced in the Subordinate Courts, then the plaintiff may only receive the costs he would have received had
he commenced it in the appropriate court.
o Unless there is “sufficient reason”.
 Cheong Ghim Fah v Murugian s/o Rangasamy (No 2) (2004)
 Negligence suit brought in the High Court, and court eventually awarded damages of
$216,523,00 (which was within the jurisdiction of the District Court).
 HELD: Even if a case does prima facie fall within the purview of the High Court, only a case of
unusual complexity or one that raised an issue of public interest or an important point of law
could ever justify the initiation of proceedings in the High Court when it could have been
commenced in the Subordinate Courts.
 On the facts, the court allowed the plaintiff’s costs to be taxed on the High Court’s scale
because [1] the plaintiff’s solicitors had reasonable grounds to believe that the recoverable
damages for their client might exceed the District Judge’s jurisdiction (even though it was no
eventually), and [2] a Subordinate Court’s judgment could not be enforced as a foreign
judgment in another jurisdiction.
o A solicitor may also be penalised personally.
 Cheong Ghim Fah v Murugian s/o Rangasamy (No 2) (2004)
 HELD: Solicitor may end up entitled to only a portion of the usual costs, and could even be
ordered to bear the consequential costs (if there is a transfer).
 This is to prevent solicitors from commencing proceedings indiscriminately, in flagrant
disregard of the statutory policy and prerequisites.

SOLICITOR-AND-CLIENT COSTS: WHEN AND HOW MUCH CAN BE CLAIMED?

ENTITLEMENT TO TAXATION OF SOLICITOR-AND-CLIENT BILLS OF COSTS

 Right to have S&C bill of costs taxed is governed by s 120, Legal Profession Act – normally obtained in 2 ways:
o [1] s 120(1), Legal Profession Act: Order under originating summons, or summons (if there’s a pending action).
 May be filed by:
 [1] A solicitor who is claiming costs – application for order to be made between 1 and 12
months from the delivery of S&C bill of costs.
 [2] A client who is disputing costs – application for order to be made within 12 months from
the delivery of S&C bill of costs.
o [2] s 120(3), Legal Profession Act: Consent of parties.
 s 126, Legal Profession Act: S&C bills of costs should be drawn up in accordance with O 59, ROC and the practice
directions, and the procedure set out in O 59, ROC will govern the taxation.
o O 59 r 28, ROC and Appendix 1 to O 59, ROC apply to taxations of S&C bill of costs for contention business –
these bills will be taxed on the indemnity basis, and the presumptions set out in O 59 r 28(2), ROC will apply.
 Note: These only apply to taxations of S&C costs, and not P&P costs.
 s 122, Legal Profession Act: If there is no taxation after 12 months from the delivery of the S&C bill of costs or after
payment of the S&C bill of costs, no order for taxation can be made unless:
o Notice is given to the solicitor.
o Special circumstances for making such an order is proved to the satisfaction of the court.
 Ho Cheng Lay v Low Yong Sen (2009)
 HELD: “Special circumstances” refer to something so exceptional so as to justify taxation –
e.g. lack of particulars in the S&C bill of costs, overcharging, breach of trust for the amount
deducted from payment of the S&C bill of costs, the S&C bill of costs puts the plaintiff out of
the sum over and above his, etc.

COSTS PAYABLE TO A SOLICITOR BY HIS OWN CLIENT

 Question of fact evaluated on a case-by-basis, and governed by O 59 r 28, ROC:

o Whether the costs was incurred with the express or implied approval of the client?
o Whether the amount was reasonable as approved to be incurred by the client?

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  Amount would be unreasonably incurred if they are of an unusual nature – unless the solicitor
satisfies the Registrar that he informed his client prior to it being incurred that they might not be
allowed on a taxation of costs inter partes.
o O 59 r 28(5), ROC: Solicitor allowed to claim a larger sum in the bill of costs submitted for taxation than the
amount originally rendered to the client, and court is also permitted to allow on taxation more costs than were
claimed in the original bill.
 Rationale – this is because the original bill is often extended on a goodwill basis, but if the client is
difficult and refuses to pay the actual costs, the solicitor can claim for the larger sum.
 O 59 r 28(4), ROC: Client cannot argue that any consent to taxation (or order for taxation) was only in
respect of the bill originally rendered to the client.

PENALTIES FOR EXCESSIVE CHARGING

GENERAL COSTS PENALTIES AGAINST LAWYERS

 Bad conduct during proceedings.
o O 59 r 8(1), ROC: Solicitor may be made personally liable for costs if:
 Costs have been incurred unreasonably or improperly.
 Costs have been wasted by failure to conduct proceedings with reasonable competence and
expedition.
 Bad conduct during taxation proceedings.
o O 59 r 8(6), ROC: Solicitor may be made personally liable for costs if:
 Where a solicitor representing any party to the taxation is guilty of neglect or delay, or puts any other
party to unnecessary expense in relation to the taxation – e.g. costs have been wasted by failure to
conduct proceedings with reasonable competence and expedition.
 Where a solicitor fails to “leave” his bill of costs for taxation within the time fixed by a court order.
 Where a solicitor impedes or delays the taxation.

“THE ONE-HALF RULE”

 O 59 r 8(7), ROC: Where “one-half or more” of the total amount of the bill is taxed off (i.e. meaning that the court only
allowed for less than half of the S&C bill to be claimed against the other party), the court may order:
o (a) That the solicitor who presented the bill be disallowed the costs for the work done for and in the taxation
of costs – i.e. don’t get costs for Section 2 of the bill of costs.
o (b) That the solicitor who presented the bill:
 (i) Stamp the bill with the fees payable under Item No 86 of Appendix B as if the bill of costs had been
allowed at the full amount claim.
 (ii) Be entitled to claim from the paying party (for a P&P bill) or his client (for an S&C bill) only for fees
payable under Item No 86 of Appendix B in respect of the actual costs allowed.
 (iii) Pay personally the difference in taxing fees – i.e., if he has to pay $10 under (i), but can only be
reimbursed $2 under (ii), this means he has to personally pay the difference of $8 for (iii).
 (iv) Pay personally the fees for the Registrar’s Certificate.
 This is purely discretionary (and may be one of both orders) – not done often in practice.
o Must consider whether the solicitor made an error in principle or an error in quantum (less lenient).

THE “ONE-SIXTH” RULE IN SECTION 128(1), LEGAL PROFESSION ACT

 s 128(1), Legal Profession Act: Where “one-sixth or more” of the total amount of the bill is taxed off (i.e. meaning that
the court only allowed for less than 5/6 of the bill to be claimed against the other party), the solicitor shall be liable to
pay the client the costs the client incurred for the taxation and in obtaining the order for taxation.

DIFFERENCES BETWEEN THE TWO RULES

“One-sixth” rule “One-half” rule

Applies only to a particular type of bill of cost (i.e. a bill in which Applies to all bills of costs.
S&C costs are claimed, and where an order for the taxation of
the bill of costs was obtained on an originating summons).
Mandatory in its operation and the court does not have Purely discretionary.
discretion as to whether to apply or dis-apply the rule.
Affects the incidence of the liability to pay the costs of the Affects the right to recover the costs of the taxation only.
taxation and the costs of obtaining the order for taxation.
Solicitor shall be liable to pay the client the costs the client Solicitor is only disallowed his own costs of the taxation,
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incurred for the taxation and in obtaining the order for taxation. but he cannot be ordered to pay costs to another person.

60