Cases

CIVIL PROCEDURE
 

Changhe International Investments Pte Ltd (formerly known as Druidstone Pte Ltd) v Dexia BIL Asia Singapore Ltd (formerly known as Banque Internationale A Luxembourg BIL (Asia) Ltd)

[2005] 3 SLR 344; [2005] SGCA 30

Court of Appeal - CA 119/2004

Chao Hick Tin JA, Judith Prakash J

31 May 2005

Civil procedure — Striking Out — First action by appellant against respondent dismissed for failure to comply with peremptory order — Second action subsequently commenced by appellant against respondent — Whether appellant’s failure to adequately explain non-compliance with peremptory order in first action amounted to contumelious conduct — Whether trial judge correct in dismissing appellant’s second action for abuse of process of court

Leslie Yeo Choon Hsien (Leslie Yeo and Associates) for the appellant Sarjit Singh Gill SC and Seah Yi-Lein (Shook Lin and Bok) for the respondent

In December 1999, the appellants (Changhe) sued the respondents (Dexia). This suit was dismissed on 8 March 200 on the ground that Changhe had failed to comply with a peremptory order of court. Changhe then changed solicitors and applied, without success, to have the order dismissing the first action set aside. This application was supported by an affidavit affirmed by a director of Changhe (Mr Boey) who claimed to have no personal knowledge of the transactions that gave rise to the first action as these had been handled by a Mr Yang, a Chinese national residing in China. Mr Boey maintained that Changhe’s failure to comply with the unless order was due to a failure by its then solicitors to inform it of such an order.

Three years later, Changhe started the present action against Dexia. Dexia entered appearance and, shortly afterwards, filed its application to strike out the Statement of Claim in this action as an abuse of process. After failing to file, on time, an affidavit explaining its actions in the first action, Changhe sought to rely on Mr Boey’s affidavit. Changhe successfully resisted the application and the matter then went on appeal before Tan J who reversed the senior assistant registrar’s decision. Changhe appealed against the decision maintaining that its failure to comply with the unless order made in the first action was not contumelious in that it was unintentional and arose from extraneous circumstances over which it had no control.

Held, dismissing the appeal:

(1) It is established law that where a litigant, whose first action has been struck out for failure to comply with a peremptory order, brings a second suit based on the same cause of action, that second suit may be struck out as being an abuse of the process of the court unless the litigant can give a proper explanation to establish that his failure to comply with the peremptory order was not contumelious. Disobedience to a peremptory order would generally amount to contumelious conduct. The courts have consistently taken the position that even where the contumelious conduct is that of the litigant’s solicitor rather than that of the litigant himself, the litigant has to bear the consequences of such contumely.

(2) Changhe did not adequately explain how what happened was not its fault. Despite having asked for time to do so, Changhe did not file a fresh affidavit from someone with full knowledge of the first action and of the interaction between Changhe and its first set of solicitors in the first action, to explain why the unless order was not and could not have been obeyed. It was also not explained why, with modern communications, the unless order and the order for further and better particulars that preceded it could not have been complied with, notwithstanding Mr Yang’s physical absence from Singapore. The affidavit by Mr Boey that Changhe chose to rely on was hearsay evidence and was wholly inadequate to establish that Changhe had not been contumelious.

(3) It was not enough to blame the solicitors. Changhe had to explain why it did not have someone on the ground to follow up on the progress of the action with the solicitors. Further, Changhe’s failure to explain various matters that would bear on its sincerity in pursuing the second action did not inspire confidence that if the second action were allowed to proceed, the orders of the court would be promptly complied with.

(4) When considering whether the conduct of a party in failing to comply with a peremptory order has been contumelious, the court’s main concern is why such order had not been complied with. Whether or not the second action should be struck out depended entirely on Changhe’s explanation for its conduct in the first action and its assurance to the court that its conduct in the first action would not be repeated in the second action. The fact that the unless order for discovery had been made before the filing of the summons for directions did not create any anomaly which would be a factor for the court to take into account in determining whether the second action should be struck out. Order 34A r 1(2) of the Rules of Court (Cap 322, R 5, 2004 Rev Ed) provided that the court could dismiss an action if the party failed to comply with an order made by the court under r 1(1). The size of the claim was immaterial. Striking out Changhe’s claim would not be inconsistent with O 34A 
r 1(1).

(5)  The approach taken by the judge below cannot be faulted. He correctly applied the general principles laid down in Janov v Morris and did not take any irrelevant factors into account when he exercised his discretion to strike out Changhe’s Statement of Claim.

EVIDENCE

Re Wong Sook Mun Christina

[2005] 3 SLR 329; [2005] SGHC 100

High Court - OS 258/2005

Andrew Phang Boon Leong JC

31 May 2005

Evidence — Presumptions — Application for court declaration of presumed death of applicant’s father under s 110 Evidence Act — Whether elements under s 110 satisfied — Sections 109, 110 Evidence Act (Cap 97, 1997 Rev Ed)

Raymond Lam Kuo Wei (Drew and Napier LLC) for the applicant

The applicant sought an order from this court declaring that her father be presumed dead.

In 1979, after a quarrel with the applicant’s mother, the father had left for the US in an apparently abrupt manner. With the exception of a single occasion in 1994, when the father gave the applicant’s elder sister a power of attorney notarised by a notary public in relation to a petition of divorce filed by the mother, there was no further contact between the father and the family (comprising the applicant, her mother and her three siblings). The family suffered much from both financial and emotional points of view. An appeal was made by the applicant’s mother (through her Member of Parliament) to the Central Provident Fund (CPF) Board for the withdrawal of funds in her husband’s account to assist in alleviating this financial burden. However, the CPF Board was unable to accede to this request. The CPF Board can only release the funds to the member on reaching the age of 55 or to his or her nominee in the event that the member has passed away or has been presumed to have passed away.

The presumption the applicant sought to rely upon in the present proceedings is embodied within s 110 of the Evidence Act (Cap 97, 1997 Rev Ed) (the EA). The applicant also filed an affidavit detailing the various efforts she had made to locate the father, which included sending letters to the father’s and notary public’s last-known addresses in the US as well as to the Controller of Immigration and the Singapore Embassy in Washington DC. These attempts to locate the father were unsuccessful.

Held, dismissing the application:

(1) Section 110 of the EA had to be read with s 109 of the EA. Consistent with the literal language of both provisions, s 110 was viewed as a proviso to s 109. Under s 109, the burden of proving that a person (here, the applicant’s father) is dead is on the applicant since it is clear that her father was in fact alive within the last 30 years. As s 109 applied to impose the burden of proof on the applicant, the issue then arose as to whether or not s 110 applied to relieve her of 
that burden.

(2) Section 110 does not appear, in and of itself, to constitute a substantive provision that establishes that the person concerned is dead, even if the prerequisites contained in that provision have been satisfied. Furthermore, case law establishes that the provision itself only results in a presumption of the fact of death and does not establish the particular time at which the death itself occurred. A strict application of this principle, to the effect that the particular time at which death occurred has to be proved by actual evidence, might itself pose a problem even when s 110 is sought to be invoked in a more general fashion It should also be borne in mind that the applicant’s father had not reached an age so advanced as to exclude the probability of survival.

(3) In order to satisfy both elements of s 110, not only must the applicant’s father not have been heard of for seven years, he must also not have been heard of by those who would naturally have heard of him if he had been alive. On a practical and commonsensical interpretation of s 110, the applicant and her family could not fall within the category of persons mentioned in s 110. The father was wholly and totally estranged from his family and, from his conduct, appeared to want to have nothing more to do with them.

(4) In any event, the applicant had not taken sufficient steps to ascertain whether or not her father was still alive. On a literal construction of s 110, it might be argued that the provision did not include this particular requirement. However, at common law and as a matter of both logic and common sense, such a requirement ought to be incorporated as part of s 110.

[Observation: Whilst the law might not be able to offer the applicant a solution, other plausible solutions may lie in the extra-legal sphere, such as a wise use of the Internet.

Section 110 as well as other provisions of the EA might be in need of legislative reform. The Indian Law Commission recently undertook an extremely comprehensive review of its own Evidence Act which included recommendations for reform for the equivalent of s 110 our Evidence Act. The law is ever-changing and proposed reforms in various jurisdictions are ever-increasingly accessible in a world that has become interconnected more than ever before. Where, therefore, legislative reforms or proposals in other jurisdictions are germane, they might well be considered and even adopted if to do so would enhance both the efficiency as well as fairness of the existing law in Singapore.]