Order 14:

Summary Judgment

The purpose of O 14 is to enable a plaintiff (or a defendant making a counterclaim) to obtain judgment without proceeding to trial when there is plainly no defence to the claim (or counterclaim). The procedure may be invoked in all actions other than those against the government (O 73 r 5); a separate procedure also exists for summary proceedings for possession of land (O 81).

The procedure works on the basis that if the plaintiff’s application is properly constituted, he is prima facie entitled to judgment unless the defendant shows cause to the contrary or the application is dismissed (para 14/4/1 Singapore Civil Procedure).

The Application

The preliminary requirements for an O14 application are:

1   the statement of claim must have been served on the defendant;

2   the defendant must have served a defence to the statement of claim;

3   the affidavit in support of the application must comply with the requirements of O 14 r 2; and

4   the O 14 application must be filed not more than 28 days after the pleadings to the action are deemed to be closed.

The application can be made only after the defence has been filed and no application should be made while a stay application is pending (Samsung Corporation v Chinese Chamber Realty Pte Ltd and others [2004] 1 SLR 382).

The time bar period of 28 days stipulated in O 14 r 14 is absolute and an amendment to pleadings may not postpone the deemed closure of pleadings (United Engineers (Singapore) Pte Ltd v Lee Lip Hong [2004] 4 SLR 305). However, it was decided in Sumikin Busan Corp v Hiew Teck Seng (alias Yaw Teck Seng) and anor [2005] 2 SLR 773¹ that where a plaintiff had obtained leave to file a reply out of time, the pleadings were not deemed to be closed until 14 days after service of the reply and the plaintiff was allowed to make an application for summary judgment within 28 days of filing the reply.

The application must be supported by an affidavit or affidavits which contain all necessary evidence in support of the claim, or part of the claim, to which the application relates.

Although O 14 r 2(1) no longer requires the affidavit to state the deponent’s belief that there is no defence, O 14 r 1 effectively imposes the requirement and the affidavit(s) in support should state the deponent’s belief that there is no defence (para 14/2/9 Singapore Civil Procedure).

At the hearing of the application, all the affidavits which have been received in evidence may be read, and in coming to a decision, any evidence in support of or in opposition to the application may be taken into account whether it be contained in an affidavit filed by one party or the other.

The Affidavits

The summons and the affidavit(s) in support must be filed at the same time and served on the defendant within three days from the date of filing. If the defendant wishes to show cause against the plaintiff’s application by affidavit, he must file and serve his affidavit(s) on the plaintiff within 14 days after service of the plaintiff’s summons and affidavit(s). The plaintiff must, if he wishes to reply to the defendant’s affidavit(s), file and serve his affidavit(s) on the defendant within 14 days after service of the 
defendant’s affidavit(s).

No further affidavit will be received in evidence without the leave of the court.

Where a party files or serves an affidavit beyond the period of time specified, the court may make such order as to costs against that party as it thinks fit.

A defendant who produces an affidavit at or immediately before the hearing should not assume any adjournment will be granted. Judgment may be entered on the affidavits before the court, leaving an appeal as the defendant’s only remedy with the difficulty of persuading the judge in chambers to admit further evidence. Should any adjournment be granted, the defendant will almost invariably be ordered to pay the costs occasioned thereby.

The Defendant Showing Cause

Once the plaintiff has shown a prima facie case that he is entitled to apply for summary judgment, the onus is on the defendant to show cause why judgment should not be entered. The defendant has to satisfy the court that:

1   he has a bona fide defence to the claim on the merits; or

2   there is an issue or question which ought to be tried; or

3   there ought to be a trial for some other reason.

The defendant’s affidavit must condescend upon particulars and should, as far as possible, deal specifically with the plaintiff’s claim and affidavit(s), and state clearly and concisely what the defence is, and what facts are relied on to support it (para 14/2/12 Singapore Civil Procedure).

In all cases, sufficient facts and particulars must be given to show that there is a triable issue. A general denial will not suffice.

Judgment for Plaintiff

Where the court is satisfied not only that there is no defence, but there is also no fairly arguable point to be made on behalf of the defendant, the court will give judgment for the plaintiff.

The policy of O 14 is to prevent delay in cases where there is no defence (per Robert Goff LJ in European Asian Bank AG v Punjab and Sind Bank (no 2) [1983] 1 WLR 642 and 654).

In Bank Negara Malaysia v Mohd Ismail and Ors [1992] 1 MLJ 400, Mohamed Azmi SCJ said that under an O 14 application, the duty of a judge does not end as soon as a fact is asserted by one party and denied or disputed by the other in an affidavit; where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable. Apart from identifying the issues of fact or law, the court must go one step further and determine whether they are triable (para 14/4/2 Singapore Civil Procedure).

In Hua Khian Ceramics Tile Suppliers Pte Ltd v Torie Construction Pte Ltd [1992] 1 SLR 884, a rule of practice was stated to the effect that the courts should take a robust approach when considering applications for summary judgment, particularly in commercial and construction cases where cashflow is the life blood to make commerce work.

In MP-Bilt Pte Ltd v Oey Widarto [1999] 3 SLR 592, the High Court observed that the rigour of the rule in Hua Khian Ceramics has been applied to good end, and has earned good reputation in Singapore, ie the court will closely examine points of set-off raised by a defendant to ensure that the true purpose is not to cause delay to the plaintiff.

Leave to Defend – Unconditional Leave

As a general principle, when a defendant shows that he has a fair case for defence, or reasonable grounds for setting up a defence, or even a fair probability that he has a bona fide defence, he will be given leave to defend (Habibullah Mohamed Yousuff v Indian Bank [1999] 3 SLR 650, CA).

Thus, leave to defend will be given unless it is clear that there is no real substantial question to be tried or that there is no dispute as to facts or law which raises a reasonable doubt that the plaintiff is entitled to judgment (para 14/4/5 Singapore Civil Procedure).

The defence must show that there is a triable issue or question of fact or that for some reason, there ought to be a trial (Alloy Automotive Sdn Bhd v Perusahaan Ironfield Sdn Bhd [1986] 1 MLJ 382, Federal Court, per Lee Hun Hoe CJ).

A mere assertion in an affidavit of a given situation does not, ipso facto, provide leave to defend: Prosperous Credit Pte Ltd v Gen Hwa Franchise International Pte Ltd & Ors [1998] 2 SLR 649. Proper particulars should be provided and the defendant must satisfy the court that he has a fair or reasonable probability of showing a real or bona fide defence, ie that his evidence is reasonably capable of belief.

The defendant should also have leave to defend if he satisfies the court that there ought for some other reason to be a trial, eg where there are circumstances which need to be closely investigated (Miles v Bull [1969] 1 QB 258 followed in Concentrate Engineering Pte Ltd v United Malayan Banking Corp Bhd [1990] SLR 514 per Chan Sek Keong J). However, merely alleging that time is required to investigate alleged obscurities in the hope of unearthing something will not suffice to show some other reason for a trial (Lady Anne Tennant v Associated Newspapers Group Ltd [1979] FSR 298).

Where an issue of law is raised, the court may decide of its own motion if it is appropriate for summary determination under O 14 r 12. However, if the matter can be disposed of by the application of well settled principles of law, the court may determine the question in summary proceedings even if the application was made under O 14 r 1.

Set-off and Counterclaim

Where a set-off or counterclaim is raised by a defendant, the possible or usual types of orders are:

1   where the defendant is able to show an arguable set-off, he should be given unconditional leave to defend to the extent of the set-off;

2   where the defendant sets up a bona fide counterclaim arising out of the same subject matter as the action and connected with the grounds of defence, he should be allowed unconditional leave to defend;

3   where the defendant has no defence to the claim but a plausible counterclaim of not less than the claim, judgment should be given on the claim with costs, with execution stayed until the trial of the counterclaim;

4   where the counterclaim arises out of a separate and distinct transaction or is wholly foreign to the claim, judgment should be given with costs, without a stay of execution.

The degree of connection between the claim and counterclaim, the strength of the counterclaim and the ability of the plaintiff to satisfy any judgment on the counterclaim are some of the considerations which the court may take account of in the exercise of its discretion whether or not to order a stay.

If a counterclaim is frivolous or untenable, it will be disregarded. The counterclaim will also be disregarded if it is totally foreign to the action or where the counterclaim ought for any reason to be disposed of by a separate action, it may be struck out or excluded under O 15 r 5(2).

If the amount of set-off or counterclaim exceeds the plaintiff’s claim, the defendant is entitled to leave to defend or a stay of execution, as the case may be, in respect of the whole claim, while if it is less, the plaintiff is entitled to judgment for the difference. It therefore behoves the defendant to particularise the amount of his set-off or counterclaim, or to specify or indicate how it is made up or calculated, so that the court should have material on which to make the proper order.

Leave to Defend – Conditional Leave

Leave to defend conditional on the full or part of the amount claimed being paid into court may be ordered where the defence is shadowy or there is little or no substance in it or the case is almost one in which summary judgment should be ordered.

However, where there is no sign of bad faith or anything to show that the defence raised is a sham or that there are suspicious circumstances as to the mode of presenting the case, leave to defend should not be made conditional.

The discretionary powers under O 14 r 4(1) are very wide, and the terms imposed on granting conditional leave to defend may relate to the giving of security or time or mode of trial or otherwise or any combination thereof.

The more usual terms are to require the defendant to bring into court within a specified time, a sum representing the whole or part of the claim, and in default, leave to the plaintiff to sign final judgment for such sum. If the defendant is unable to pay the amount of security ordered, the court may make an order for a reduced sum combined with some other financial arrangement (International Bank of Singapore Ltd v Bader [1988] SLR 823).

Determination of Question of Law or Construction of Documents

Under O 14 r 12, an application may be made for determination of a question of law or construction by a party or the court of its own motion.

The general requirements for an application under O 14 r 12 are:

1   the defendant must have entered an appearance in the action;

2   the question of law or construction is suitable for determination without a full trial of the action;

3   such determination will fully determine the entire cause or matter or any claim or issue therein;

4   the parties had an opportunity of being heard on the question of law or construction; and

5   the summons for determination is filed not more than 28 days after the pleadings in the action are deemed to be closed.

The procedure should be put to use in cases where all relevant and necessary evidence is documentary or in cases where the matter can be disposed of by the application of well settled principles of law.

However, where the determination 
of the question of law will not fully determine the entire cause or matter or any claim therein, and the determination as such is not likely to result in substantial savings of time and costs, then the question is not suitable for determination under this rule without a full trial of the action (Ong & Co Pte Ltd v 
Ngu Tieng Ung [1999] 4 SLR 379). Similarly, where the construction of a document does not advance any of the issues in contention in the cause or matter, O 14 r 12 should not be resorted to (Tat Lee Securities Pte Ltd v Tsang Tsang Kwong and another action [2000] 1 SLR 1).

The question of law or construction to be determined by the court should be stated or formulated in clear, careful and precise terms, so that there should be no difficulty or obscurity, still less any ambiguity, about what is the question that has to be determined. However, where there is a material dispute of fact, an application under O 14 r 12 would fail (Lum Kai Keng v Quek Peng Chai & Ors [2001] 4 
SLR 392).

An application under O 14 r 12 may be made by summons or it may be made orally in the course of any interlocutory application to the court. The application should ordinarily be made by summons. However, occasionally, a question of law emerges during the hearing of an interlocutory application (eg relating to pleadings or discovery or evidence) the determination of which would finally dispose of the whole action or at any rate, a claim or issue in it. In such event, instead of adjourning the proceedings to enable an application under r 12 to be made at a later date, the court is enabled on the application of a party, and after hearing the parties on that question, to determine that question and finally, to dispose of the whole action or the particular claim or issue in it. Indeed, in such event, the court may act of its own motion, after hearing the parties, to determine the question of law and dispose of the action (see r 12(1)).

Costs

It is necessary that the costs of an application under O 14 be expressly dealt with on the hearing thereof (O 59 
r 3(1)). The costs are in the discretion of the court and the award of costs will depend upon the nature of the order made and the circumstances of the case.

Where judgment is entered and the plaintiff is entitled to costs, the amount is usually fixed by the court according to the scale of fixed costs in force (O 59 Appendix 2 Parts I and II). However, the court may order costs to be taxed if it is of the view that the costs should exceed the scale of fixed costs.

Where judgment is entered for part of the claim, the order should not deal with the costs of the action but only the costs of the application.

Where the defendant is given unconditional leave to defend, the usual order is for costs to be in the cause.

Where the defendant is given conditional leave to defend, the order for costs generally corresponds with the condition imposed, and its operation made dependent on whether or not the condition is complied with.

Order 14 r 7 confers express powers on the court to dismiss any application under O 14 where the plaintiff knew, before the issue of the summons, that the defendant was relying on an arguable defence, and to order the plaintiff to pay the costs of 
the application.

The costs on appeal normally follow the event. If, however, the appeal turns upon evidence or material not placed before the court below, the costs below are normally left undisturbed.

Appeal

Applications made under O 14 are heard in the first instance by a registrar, and an appeal lies in every case to the judge in chambers (O 56 r 1) or district judge in chambers (O 55B r 1) as the case may be. Unless otherwise directed by the court, such an appeal will not operate as a stay of the proceedings.

A party may appeal further to the High Court judge in chambers against the decision of the district judge in chambers hearing an appeal against the decision of the registrar of the subordinate courts. However, leave to appeal is required if the value of the subject matter is below $50,000 (s 21 Supreme Court of Judicature Act).

A defendant may appeal to the Court of Appeal against the decision of the High Court judge in chambers giving judgment to the plaintiff, or against the decision of the High Court judge in chambers giving conditional leave to defend (s 34(1)(b) Supreme Court of Judicature Act). Where conditional leave to defend is ordered, certification as to further arguments is necessary as the order is interlocutory 
(s 34(1)(c) Supreme Court of Judicature Act). Furthermore, leave to appeal is required if the value of the subject matter is below $250,000 (s 34(2)(a) Supreme Court of Judicature Act). However, neither party may appeal to the Court of Appeal against the decision of a judge in chambers giving the defendant unconditional leave to defend (s 34(1)(a) Supreme Court of Judicature Act).

The notice of appeal from the registrar must be issued within 14 days after the decision complained of, unless the court otherwise orders. The time for appealing to the Court of Appeal is one month from the day the order was made (O 57 r 4). An application for leave must be filed to the judge within seven days from the decision appealed against. If leave is not granted by the district judge or the High Court, an application must be made to the High Court or the Court of Appeal, as the case may be, under O 55C r 2 or O 56 r 3.

A judge in chambers who hears an appeal from the registrar is entitled to treat the matter as though it came before him for the first time. The judge’s discretion is in no way fettered by the decision below, and he is free to allow the admission of fresh evidence in the absence of contrary reasons. On appeal to the Court of Appeal, case law has established that the Court of Appeal will not interfere with the discretion of the judge unless satisfied that the judge’s discretion has been wrongly exercised. Order 57 r 13 specifically states the manner in which further evidence may be received at the Court of Appeal (see also: Lian Soon Construction Pte Ltd v Guan Qian Realty Pte Ltd [1999] 2 SLR 233 CA and Shanmugam Jayakumar & Anor v Jeyaretnam JB & Anor [1997] 2 SLR 172).

District Judge Valerie Thean

District Judge Tan May Tee

District Judge Julian Chin

Subordinate Courts

Jason Lim

Michael Khoo & Partners

Notes

1   The appeal to the Court of Appeal against this decision was withdrawn.