Suit No: Suit 386/2007, RA 161/2007
Decision Date: 20 Sep 2007
Court: District Court
Coram: Leslie Chew
Counsel: Abraham Vergis/Shum Wai Keong (Drew & Napier LLC) for the plaintiff, Vijay Kumar Rai (Arbiters’ Inc Law Corporation) for the defendants
20 September 2007
District Judge Leslie Chew:
1. This Registrar’s Appeal concerns an application for summary judgment filed in Summons No. 8274/2007D, by the Plaintiffs against the 2nd Defendants. The application was heard on 2 August 2007. At the hearing, the 2nd Defendants raised the preliminary objection that the Plaintiff’s application for summary judgment was filed out of time and that therefore the application should be dismissed. The learned Deputy Registrar agreed with the 2nd Defendants and sustained the preliminary objection thereby dismissing the summary judgment application by the Plaintiffs.
2. The current appeal was filed by the Plaintiffs to reverse the decision of the learned Deputy Registrar. I heard the matter on 5 September and at the end of the hearing, I reserved my decision. I now give my decision and the grounds of decision.
3. At the hearing before me both parties submitted written submissions. The Plaintiff’s written submission is dated 4 September 2007 (“PWS”). The 2nd Defendants’ written submission is dated 31 August 2007 (“DWS”).
4. Being a matter based on a preliminary objection that the summary judgment application was filed out of time, the chronology of the pleadings and the application for summary judgment is central.
5. For the purpose of this appeal, I would refer to the Chronology the Plaintiff set out in the PWS at paragraphs 5 – 16:
a. On 5 February 2007, the Plaintiff filed the Writ of Summons and Statement of Claim. The 2nd Defendant was joined as a nominal defendant – see paragraph 40 of the Statement of Claim. No claims were made against the 2nd Defendant.
b. On 2 March 2007, the 1st Defendant filed its Defence.
c. On 9 March 2007, the 2nd Defendant filed it Defence although there were no claims brought against it.
d. On 5 April the Plaintiff filed SUM 4791/2007F for leave to amend the Statement of Claim to add claims against the 2nd Defendant. Leave was granted to the Plaintiff to amend the Statement of Claim.
e. On 13 April 2007, the Plaintiff filed the amended Statement of Claim adding claims and reliefs against the 2nd Defendant.
f. On 27 April 2007, the 2nd Defendant filed an amended Defence.
g. On 8 June 2007, the Plaintiff filed SUM 8274/2007D for summary judgment under O14 of the Rules of Court.
h. At the pre-Trial Conference on 18 July 2007, the 2nd Defendant raised the preliminary objection to the Plaintiff’s summary judgment application on the ground that it was filed out of time and ought to be dismissed.
i. The substantive hearing on the preliminary objection took place before the learned Deputy Registrar on 2 August 2007. He dismissed the Plaintiff’s application for summary judgment and sustained the 2nd Defendant’s preliminary objection.
6. Based on the abovementioned chronology, the Plaintiff characterized the only issue for my consideration as follows:
“Whether the time period for applying for summary judgment against the second Defendant runs from the date the original Statement of Claim was filed, or does time run from the date the Amended Statement of Claim was filed?”
7. I find the issue as stated by the Plaintiff to be clear and succinct enough for the purposes of the hearing of this matter. I accordingly adopt the characterization of the issue for the purposes of my decision.
8. The Defendant’s objection to the Order 14 application by the Plaintiff is a simple and uncomplicated one. They say that by the operation of O 14 r 14 read with o18 r 20(1) of the Rules of Court the time to file an application for summary judgment would have expired or lapsed after 28 days from the close of pleadings reckoned from the date of the filing of the Statement of Claim.
9. The Defendant argued that amendments to pleadings do not postpone the ‘deemed closure’ of pleadings referred to in O 14 r 14 of the Rules. They relied on a number of cases but for this submission reliance was placed squarely on the High Court case of United Engineers (Singapore) Pte Ltd v Lee Lip Hiong & Ors  4 SLR 305.
10. According to the Defendant, the High Court in that case had decided that O 18 r 20(1) of the Rules fixed the ‘deemed closure’ of pleadings for the purposes of O 14 r14 of the Rules with certainty and amendments to pleadings did not postpone the ‘deemed closure’ of pleadings or extend the time limit laid down in O 14 r 14 of the Rules. Indeed in his oral submission Defendant Counsel reminded this Court that it was bound by the High Court decision in United Engineers.
11. The Plaintiff conceded that on present authorities “…theprescribed period of 28 days [for the filing of summary judgment applications under O 14] cannot be extended and amendments to pleadings do not postpone the deemed closure of pleadings: Jeffrey Pinlser, Supreme Court Practice 2006 (LexisNexis 2006) at pg 257.
12. The Plaintiff, however, contended that in certain circumstances, the ‘deemed closure of pleadings’ in O 14 r 14 of the Rules must be reckoned from the time the amended Statement of Claim was filed and not from the filing of the original unamended Statement of Claim.
13. In short and in contrast to the Defendant’s assertion, the Plaintiff argued that in certain circumstances, amendment of pleadings postponed the ‘deemed closure’ of pleadings and extended the time limit laid down in O14 r O14 of the Rules for the filing of an O 14 application. They argued that based on a proper analysis of current authorities, their case fell within those circumstances. The Plaintiff too referred to United Engineers but they say that case is distinguishable.
14. The Plaintiff pointed to another case Ong & Ong Architects Pte Ltd and Another v Yee Wei Chi  SGHC 109. Counsel for the Plaintiff argued that Ong & Ong clarified that where a new party is added to an action, the closure of pleadings is not postponed against the original parties but that does not apply to the new party recently added to the action. The Plaintiff argued that his case was akin to the situation where a new party was added to the action. Hence, the principles laid down in Ong & Ong were applicable. I will return to this argument below as this particular argument of the Plaintiff requires elaboration and explanation.
The Scheme of O 14 of the Rules of Court
15. The O 14 procedure provides a convenient process by which an action may be disposed of without a full trial. The action is tried on affidavit evidence. The procedure however lays down specific time lines for the applicant to comply with.
16. For the purposes of this case, the relevant time line is the ‘cut-off’ when an application for summary judgment under this Order may not be filed. O 14 r 14 provides:
“No summons under this Order shall be filed more than 28 days after the pleadings in the action are deemed to be closed.”
17. O 18 r 20 of the Rules of Court deals with the closure of pleadings and it provides as follows:
“(1) The pleadings in an action are deemed to be closed –
(a) at the expiration of 14 days after the service of the reply or, if there is no reply but only a defence to counterclaim, after service of the defence to counterclaim; or
(b) if neither a reply nor a defence to counterclaim is serve, at the expiration of 14 days after service of the defence.
(2) The pleadings in an action are deemed to be closed at the time provided by paragraph (1) notwithstanding that any request or order for particulars has been made but has not been complied with at that time.”
18. In the present case, the 2nd Defendant filed their Defence on 9 March 2007 (the Plaintiff did not file a reply to the Defence). By virtue of electronic filing and in view of O 63A of the Rules, the 2nd Defendant’s Defence was simultaneously and electronically served on the Plaintiff when it was electronically filed. Accordingly for the purposes of filing an application under O 14, the latest date on which the Plaintiff could file the application would have been 20 April 2007, being the 28th day after the pleadings in this action would have been deemed closed pursuant to O 18 r 20. This was not disputed by the parties.
19. However, in the present case the Plaintiff applied for leave to amend their Statement of Claim on 5 April 2007 and leave to amend was granted. The Plaintiff filed their Amended Statement of Claim on 13 April 2007.
20. Consequent upon the Amended Statement of Claim being filed as above, the Plaintiff filed an application for summary judgment against the 2nd Defendant under O 14.
21. The Plaintiff took the position that the amendment of pleadings extended the time limit set in O 14 r 14 for the filing of an application for summary judgment. The Plaintiff takes the view and argued before me that by reason of the amended Statement of Claim, the time when pleadings are deemed closed for the purposes of O14 r 14 is to be computed from the time the 2nd Defendant filed their amended Defence.
22. The amended defence was not filed until 27 April 2007.It was served on 30 April 2007 (This was clarified by the Court and the parties wrote to confirm the abovementioned on 11 September 2007 (in the case of the Plaintiff) and on 12 September 2007 (in the case of the 2nd Defendant). On the Plaintiff’s argument, based on the amended Defence filed on 27 April 2007, the cut-off by virtue of O 14 r 14, for the filing of the O14 application would have been 8 June 2007. The Plaintiff filed their O14 application on 8 June itself. On that argument, the 2nd Defendant’s preliminary objection cannot be sustained. I should point out that properly interpreted, the deadline under O 14 r14 for this case if based on the amended Defence of the 2nd Defendant, would have been 11 June 2007. The pleadings in that event would have been deemed closed 28 days after the amended defence of the 2nd Defendant was served on the Plaintiff. The Plaintiff argued the matter based on the filing date of the amended defence for the 2nd Defendant. For reasons which will be apparent below that date does not matter.
23. As stated above, the 2nd Defendant, however, relied principally on the United Engineers case (supra) which they argued stands for the proposition that O18 r 20(1) fixed the ‘deemed closure of pleadings’ with certainty. Based on the case the 2nd Defendants further argued that amendments to pleadings, did not postpone the ‘deemed closure of pleadings’ i.e. amendment to pleadings do not extend the time limit laid down in O 14 r 14 so far as summary judgment applications are concerned. If the 2nd Defendant is right and the Plaintiff cannot distinguish United Engineers, I would be bound by the case.
24. The decision in United Engineers in my judgment, applies to the present case and I am bound by the High Court’s decision. That case is clearly on all fours with the present case. As the court pointed out at , the issues facing the court there were the following:
(a) Can the time limit [in 014 r14] be extended by the court?
(b) When pleadings are amended, do they postpone the deemed closure of pleadings, thereby extending the time limit in O14 r14 automatically?
25. Taking the second issue raised in United Engineers which is the only relevant issue here: When Pleadings are amended, do they postpone the deemed closure of pleadings, thereby extending the time limit in O14 r 14 automatically?
26. In United Engineers at  to  Justice Tay Yong Kwang, after reviewing the history and purpose of O 14 r14, had this to say,
“ … I believe … that a purposive interpretation of O14 r14 makes it necessary to conclude that the time bar there is an absolute one and may not be extended by the court (emphasis added). For good measure, although this point did not appear to have been canvassed before the Assistant Registrar, it must follow that the parties are not permitted to extend the time in O14 r 14 by consent under O3 r 4(3) which is in the following terms:
‘The period within which a person is required by these Rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.’
 I would not invoke the inherent powers of the court (see O92 r 4) to override the clear prohibition in O 14 r 14: “No court should arrogate unto itself a power to act contrary to the Rules” (Per Chao Hick Tin JA in the Court of Appeal in Samsung Corp v Chinese Chamber Realty Pte Ltd  1 SLR 382 at ).”
27. In United Engineers, the applicants for the summary judgment had also applied for extensions of time to file their O14 applications but did not wait until these applications were heard. They proceeded on the basis that amendment of pleadings lifted the time bar in O 14 r14. In the present case, the Plaintiff has not applied for an extension of time to file the O 14 application. Counsel for Plaintiff did, however, indicate that if necessary they would make an oral application.
28. Next Justice Tay dealt with the issue of whether the amendment of pleadings resulted in “the postponement of the deemed closure” under O 18 r 20. In United Engineers at , Justice Tay could not be clearer on this issue. His Honour held that “…amendmentsto pleadings do not postpone the deemed closure of pleadings and do not extend the time limit in O14 r14.”
29. In reaching the above mentioned conclusion, his Honour reviewed a number of English cases as well as a Canadian decision (which Justice Tay declined to follow because of our scheme of Rules of Court – see United Engineers at ). For the purposes of the present case, it would suffice if I should simply refer to one of the legal texts which the Court relied upon. At  of United Engineers, Justice Tay referred to Pleadings: Priniciples and Practice (Sweet and Maxwell, 1990 Ed) where the learned authors, Sir Jack Jacob QC and Iain Goldrein, had the following to say:
“[P]leadings are deemed to be closed, notwithstanding that one or other party may desire or apply to amend his pleadings or that pleadings are in fact subsequently amended.”
30. In his written submission, learned Counsel for the Plaintiff submitted that the case “…rais[ed]a novel issue of procedure for this …Court’s consideration.” In view of my understanding and application of United Engineers I must therefore respectfully disagree. It is clear to me that the principles (though obviously not the factual matrix, which in my judgment do not undermine the general application of the principles) laid down by the High Court in United Engineers apply to the present case. More to the point, I am bound by the case; it is the source of the stream from which I must drink.
31. For completeness, I ought to address a number of other arguments which Plaintiff’s Counsel raised.
32. First, Counsel for Plaintiff also referred me to the recent decision of AR Dorcas Quek in Ong & Ong Architects Pte Ltd and Another v Yee Wei Chi and Another  SGHC 109. The case dealt with similar issues. More importantly, Counsel urged me to adopt the view of the learned AR in that case when she expressed the view at  to  that pleadings could be said to close at a later stage where a new or additional party is added before the close of pleadings, following the reasoning in Vestwin Trading Pte Ltd v Obegi Melissa  3 SLR 573.
33. Plaintiff Counsel argued that the present case is akin to the situation of adding a new party to an action as substantive prayers for relief and claims were made “…forthe first time against the 2nd Defendant only in the Statement of Claim (Amendment No. 1) filed on 13 April 2007.” In the present case, prior to the amendment of the Statement of Claim, the 2nd Defendant was only a nominal defendant – see paragraph 40 of the Statement of Claim. When the 2nd Defendant filed their Defence, however, they did not see themselves as a nominal defendant in the proceedings and filed a substantive defence gratis as it were. In the result the Plaintiff felt compelled to amend their Statement of Claim to deal with the substantive Defence and to seek substantive remedies against the 2nd Defendant.
34. With respect, I do not agree with Plaintiff Counsel’s submission. To liken the aforementioned situation to a joinder of a new party would, in my judgment, be a considerable stretch of logic. Clearly, the 2nd Defendant was a party from the beginning. No amount of rationalization to the contrary could justify a different conclusion. Nor would it be right in principle to do so.
35. Second, Counsel for Plaintiff also argued that United Engineers may be distinguished on the basis that Justice Tay’s conclusion that the time bar in O 14 r 14 was absolute, was a tentative one. For that reason his Honour went further to opine that if he were wrong in arriving at that conclusion, he would not in any event extend time on the facts of the case before him. Again I must respectfully disagree with learned Counsel for the Plaintiff. It was not a case, in my judgment, of Justice Tay being tentative in his views. It was simply a case of his Honour being complete and thorough in dealing with the issues facing the court. The reasoning preceding his Honour’s conclusion that the time bar in O 14 r 14 was absolute makes that very clear.
36. There is in my view good reason why the High Court regards the time bar in O 14 r 14 as being an absolute one. As Justice Tay puts it succinctly “ To achieve some measure of certainty for the defendant and for the registrar who is charged with the management of cases, there has to be an absolute point beyond which no application for summary judgment may be taken out. None existed before O 14 r 14 was introduced in the Rules of Court. That provision was inserted for this very purpose and would be negated if the court has to hear applications for extension of time and appeals emanating therefrom” – United Engineers at . United Engineers, in my judgment, admirably searched for and chose principle over mere application of the Rules of Court to different factual situations. The approach there is consonant with the views expressed by our Court of Appeal in Comptroller of Income Tax v IA  4 SLR 161 with respect to the preference for a search for principle over issues of application, when it said at :
“The law must surely embody guiding principles that are both its lifeblood and hence its essence. …The law is not – and cannot be – a mere agglomeration of disparate facts lost in the legal desert. To this end, we attempt, in the present proceedings, to both search for as well as state the relevant legal principles that are rooted in both logic as well as justice and fairness.”
37. I should also add that the logic behind the conclusion that the time bar in O 14 r 14 is an absolute one and amendments of pleadings do not reopen the time lines, is not affected or otherwise impugned simply because the amendment of pleadings is the result, as in this case, of an order of court. There is no doubt that the Rules of Court permit the flexibility of amendment of pleadings and hence the consequential adjustment to timelines for the filing of defences for example. Thus in this case, when the Plaintiff applied for and the court allowed amendment of the Statement of Claim on 5 April 2007, the result was a consequential order for time to be extended for the 2nd Defendant to amend their Defence in order to be responsive to the Amended Statement of claim. At first blush it may appear illogical that time lines are now redrawn for pleadings yet the time bar in O 14 r 14 is neither affected nor lifted on the logic of United Engineers.
38. With respect, I do not think that where we have arrived following United Engineers is illogical. On the contrary it is perfectly logical and sensible. As I have mentioned at first blush, the conclusion that the time bar in O 14 r 14 is absolute and unaffected by amendment of pleadings appears to give rise to a contradiction. The apparent contradiction being this. On the one hand a party may amend its pleadings by order of court with the consequential result extending the time lines for various pleadings and yet such extension of time lines does not permit that party to avail itself of the new time lines to file an application for summary judgment.
39. The answer is provided or at least hinted at, in my judgment, by the learned Assistant Registrar in United Engineers. At  of United Engineers Justice Tay in explaining why he thought the Assistant Registrar (in the court below) distinguished the Canadian case of Freeman v Parker  OWN 561, opined that the learned Assistant Registrar concluded that the case only stood for the proposition that amendment to pleadings postponed the actual closure of pleadings not their deemed closure. Although Justice Tay was content to simply decline to follow the reasoning of the Canadian case on the basis of the scheme of our Rules of Court, I do not understand Justice Tay to be critical of the conclusion of the learned Assistant Registrar in that regard.
40. In my judgment, the logic of the learned Assistant Registrar there is an attractive one and for my part I would adopt the rationale. The Rules permit a party to obtain leave as the Plaintiff here has done, to amend his Statement of Claim. The result of the amendment is that time is extended for the counterparty to file their amended pleadings. All these will inevitably result in a shift in time lines so far as the litigation procedures affecting the action are concerned. Nevertheless, the shift in timelines do not and cannot affect the ‘deemed closure’ of the pleadings for the purposes of the time bar in O14 r 14. There is therefore a distinction to be drawn between ‘actual closure of pleadings’ and ‘deemed closure of pleadings’ in the context of the O 14 procedure. This distinction, in my judgment, reconciles the apparent contradiction between the permissiveness of the Rules allowing for amendment of pleadings with the resultant effect of extending the time of the actual closure of pleadings and the absolute prohibition in O 14 r 14 arising from the deemed closure of pleadings.
41. Parties before me had also referred to the case of Sumikin Bussan Corp v Hiew Teck Seng (alias Yaw Teck Seng) and another  SGHC 76. In that case, a decision of her honour Justice Judith Prakash, the Plaintiff who did not file a reply to the Defences of both defendants subsequently applied for extensions of time to file a reply. As a result of the filing of the reply, the Plaintiff applied for summary judgment on the basis that the extension of time to file reply resulted in the pleadings not being deemed closed until the expiry of the new time lines. Her Honour distinguished United Engineers on the basis that that case had to deal with the matter of amendment of pleadings which was not covered by the Rules. In Sumikin Bussan, she was dealing with extensions of time to file pleadings which were not in her view in any way remarkable since these were within the scope of the Rules themselves – see Sumikin Bussan at  to [17. Sumikin Bussan though superficially similar to the present case, cannot therefore help the Plaintiff. It should also be pointed out that while she distinguished United Engineers from her case, Justice Prakash accepted the rationale and conclusion of Justice Tay in respect of O 14 r 14 – see Sumikin Bussan at  – 13].
42. For the reasons I have set out, I am of the view that the 2nd Defendant’s preliminary objection ought to be sustained. I therefore dismiss the Plaintiff’s appeal in RA 161/2007/F. The answer to the question posed in paragraph 6 above, is therefore that time runs from the date the original Statement Of Claim was filed.
43. At this juncture it would be apposite for me to hark back to what I had referred to earlier. In the present application Counsel for Plaintiff did not apply for extension of time to file the O 14 application although learned Counsel did intimate that he could if necessary make an oral application. Strictly therefore I need not address my mind to any such application, there being none before me. I would however state that I would not be inclined to grant any application for an extension of time to file an application for summary judgment for the reasons I have set out above and also for the reasons referred to in the Court of Appeal case of Samsung Corp v Chinese Chamber Realty Pte Ltd (supra at , per Chao JA). I have specifically dealt with the possibility of the Plaintiff making an application whether oral or formal for an extension of the time bar under O 14 r 14 to obviate any need for the Plaintiff to take any further steps in that direction.
44. I shall hear parties on costs.