Issue / Event Applicable rules and scenariosWhere claim is below jurisdiction of HC, can claim be brought in HC?

The High Court shall have jurisdiction to hear and try any action in personam where D is served with a WOS or OS in Singapore in the manner prescribed by the ROC or outside Singapore in the circumstances authorized by and in the manner prescribed by the ROC or of D submits to its jurisdiction.

XX may have good reason to believe that the judgment needs to be enforced outside of Singapore and requires a superior court judgment or the dispute could be a judicial review which the HC has jurisdiction over. OR it could be difficult to ascertain the claim for damages. The fact that the plaintiffs did not ultimately obtain an amount in excess of the state court jurisdiction should not be held against them as the test is not one of hindsight but of reasonableness.

The applicable test to ascertain whether costs should be paid at the HC scale is to determine if there was sufficient reason to bring the matter to the HC (Cheong Ghim Fah) and O 59 r 27(5). Here [XX] has reasonable ground to believe the damages their clients might potentially recover would exceed the State Courts jurisdiction and if a State Court judgment could not be enforced as a foreign judgment in another jurisdiction, as in the present case, this could be sufficient reason for initiating the action in the High Court and the applicable scale of costs would/would not be at the HC level.

While s 39 SCJA and O 59 r 27 only deal with the plaintiffs recovery of costs, Pinsler argues, citing VK Rajah JA that the court has discretion to order plaintiffs to bear costs at the HC scale.

How to maintain an action that exceeds the jurisdiction of the state courts?

Starting point is that if amount exceeds limit, court has no jurisdiction: s 19 SCA Section 22(1) SCA: abandonment of excess of claim Section 23 SCA: parties agree by memorandum that DC has jurisdiction Section 54B SCA: High Court has power to transfer proceedings from DC Do nothing

If an action on a point of law has a dispute of fact what will happen?

Court will convert the OS into a writ action! – O 28 r 8 Fraud has compulsory writ action (substantial disputes of fact) O 28 r 8 – pleadings (set out claims) (and that affidavits are part of pleadings)

If your claim will be time barred soon but you don't have particulars of the case

6 r 2 (1)(a): A writ can be issued with the SoC or if not available, with a concise statement of the nature of the claim made or the relief required.

File memorandum of service within 8 days – O 10 r 1(4) The SoC will then be filed and served on Df within 14 days after Df enters into appearance

If defendant is travelling extensively and will only be back in Singapore in 8 months, when your writ has already expired

Although writ has just expired, an application to extend its validity can be made within 6 months after its expiry (O 6 r 4(2)) for a period of 6 months, however in this case, as the Df is travelling extensively and will only be back in 8 months, the extension can be for a period of 12 months if after reasonable efforts are taken it is not possible to serve writ within 6 months (O 6 r 4(2A)) [QBE Insurance].

The application for renewal is made ex parte by summons supported by affidavit stating reasons why extension of writ is required. Full and frank disclosure is required otherwise renewal may be set aside.

The renewal of the writ will be dependent on the courts discretion and there must be a good reason (Kleinwort Benson). Here [xx] has / has not satisfied the good reason test because …. and would likely be granted the renewal. The costs order would be costs in the cause OR plaintiffs costs in the cause since [xx] did the work and should be compensated for it

The principles applicable to extensions of writ are as follows [see Kleinwort Benson Ltd and Lim Hong Kan]: the sooner u apply with validity – the renewal is more likely to be granted

The power to extend the validity of a writ should be exercised for a “good reason”. When 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 and Lim Hong Kan).

o where the defendant has requested for the service of the writ be withheld (see Kun Kay Hong v. Tan Teo Huat [1984 - 1985] SLR 232).

o The Lircay Express or implied agreement between parties to defer service Delay in service or extension of writ induced or contributed by D's conduct Difficulty in effecting service because D is evasive

When 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 & Ors v Anglo American Oil Co; and Dagnell & Anor v JL Freedman & Co. (a firm)].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] 2 QB 355 and Easy v Universal Anchorage Co Ltd [1974].o a plaintiff has insufficient funds to proceed with the litigation (see Baly & anor v Barrett)o negligence of the plaintiff’s solicitors (see New Ching Kee v Lim Ser Hock [1972 - 1974] SLR 572)o where the plaintiffs had failed to take reasonable steps to effect service of the writ (see The Big Beacher ).

Whether there is a good reason that exists in any particular case depends on all the circumstances of the case. Balance of hardship is a relevant matter to be taken into account, but only if good reason is already shown. The discretion of the judge and his exercise of it should not be interfered with by an appellate court except on special grounds.

Cost Order- If df keeps running around

o Cost in the cause ORo Pf’s Cost in the cause

Pf did work, should be compensated for cost- If its plaintiffs own reasons, then no order as to costs

OS to be served on a totally untraceable defendant. Which provision of the ROC should you make an application for the motion to proceed without the defendant?

The starting point is that all originating processes must be served personally – O 10 r 5.

[XX] should apply by ex parte summons supported by affidavit giving full and frank disclosure for the court to dispense with the requirement of personal service under O62 r 1(2).

As [YY] is untraceable, [XX] should file for an application for substituted service by summons supported by affidavit under O62 r 5, stating that 2 reasonable attempts at personal service have been made and why the Pf believes those attempts were reasonable. The affidavit should contain a prayer to effect service by advertisement in a widely read publication.

Consequences of Within 8 days: O 10 r 1(4)

not filing MOSNote effects of not filing memorandum of service: O 10 r 1(4): plaintiff shall not be entitled to enter final or interlocutory judgment against defendant in default of appearance or in default of defence unless Court otherwise orders; O 21 r 2(5): writ deemed to be discontinued if memorandum of service not filed within 12 months after validity of writ for purpose of service has expired.

If the Df has left the jurisdiction to evade service of the writ?

The starting point is that all originating processes must be served personally – O 10 r 5.Where [YY] leaves Sg before writ issued against him ⇒ [XX] should seek leave to serve out of J before resorting to substituted service [Consistel v Parooq Nasir]. [XX] applies by summons supported by affidavit (O11 r2), deposing grounds for application, that he believes he has a good cause of action under one of the limbs of O 11 r 1 and whether it is necessary to extend validity of writ. [XX] has a duty to make full and frank disclosure (Transniko) or else the order may be set aside. Service can be through private agent or it may have to be through the courts or consulate to comply with the laws of that country (Fortune Hong Kong).

A Pf based in Singapore attempts to serve your client a writ overseas but it does not comply with ROC for service out of jurisdiction.

[YY] should dispute the jurisdiction of the court by reason of irregularity and do so by entering an appearance within the time limited for serving a defence apply to the court to make an order setting aside the writ or service of the writ against him or that the writ has not been duly served on him (o 12 r 7(1)(b))

Court may also ask for the papers to be served through you.

Where writ was not served properly

YY should enter into an appearance within 8 days if in singapore or 21 days if overseas by filing a MoA with the court under O 12 r 2 and dispute jurisdiction of the court by applying to set aside writ or to discontinue action on the grounds that the writ has not been duly served on him and to dischrage the order extending validity of writ, if any - (O 12 r 7(1)(b)). Such an application must be made by summons supported by an affidavit (O 12 r 7(3)), failing which the court may on, YY's application by summons order action to be dismissed (O 12 r 8). Appearance does not constitute a waiver of irregularity.[ O 12 r 6 ]

- If df’s application dismissedo Costs to pf borne by df, to be fixed at $x

- If df’s application acceptedo Service may be deemed regularo Or service set aside pf to serve againo Costs to df borne by pf, to be fixed at $x; pf to pay p&p costs to df, and s&c costs to pf’s lawyer (about 1/3 more

Enter into appearance

As XX was properly served with the writ, he has 8 days (O 12 r 4) after service of the writ to enter an appearance by filing a Memorandum of Appearance with the court to indicate his intention to defend the suit.

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. Without appearance, it is an admission of all allegations in the Statement of claim and it precludes the Df from setting up in a subsequent action a defence which was decided by the previous judgment. Do so within 8 days if Singapore, if overseas 21 days.

If XX misses 8 days? So long as no judgment has entered, can file appearance. Can always apply to set it aside even if judgment entered against him.

If appearance is not entered, XX would be in default of appearance and the YY may act to enter judgment against XX. If KBC successfully obtains default judgment, scaled costs would be awarded to Pf against Dalvey. Dalvey would then have to apply

to set aside the default judgment. If the judgment is irregular, Dalvey would not bear costs of setting aside if he wins or loses the application as the Pf is blameworthy. If the judgment is regular, then even if Dalvey succeeds in setting aside, he would have to bear costs because he is the blameworthy

party.Entering defence XX has to file and serve a defence to the claim within 14 days of entering an appearance (O 18 r 2) or when SoC is served on him,

whichever is latero Filing for a stay application / striking out does not stop time for service of defence from running (Carona Holdings)

- What to include in defence – r 8(1), (2)Matters which must be specifically pleaded subsequent to a SOC:(a) as to performance, release, limitation, fraud, illegality & anything if not specifically pleaded might:(1) in the light of the allegations made, make any claim or defence of the opposite party unmaintainable;(2) take the opposite party by surprise; or(3) which raises issues of fact not arising out of the preceding pleading.(b) A Df to an action for the recovery of immovable property must plead specifically every ground of defence which he relies, and a plea per se that he is in possession of the immovable property by himself or his tenant is not sufficient. Traverse

o Every allegation of fact must be specifically traversed, a general statement of non-admission is not enough – O 18 r 13(3)- Extension of time for filing defence:

o ask court by applying summons supported by affidavit (but may run risks of costs)o ask opposing party for extension by writing letter (opposing party unlikely to ask for costs)

Issuing a third party notice

Issue a third party notice against [XX] under O 16 r 1, on the ground that the claim against [XX] is for substantially the same relief or remedy claimed by the plaintiff (O 16 r 1(1)(b))

o Or go under O 16 r 1(1)(a): seeking contribution/indemnity Leave is required for actions begun by OS or actions begun by writ and the defence has already been served (O 16 r 1(2)) O16 r 1(a) – 3p Notice With leave or without leave?

o NOTE: O 16 r 6 – TP proceedings can be set aside at any stage by the court.o When is leave required?

(i) Require leave if bring in 3P AFTER defence has been filed; (ii) NOT require leave if bring in 3P BEFORE defence filed - O16 r1(2) (iii) Leave is required if intended TP is the government - O 73 r 8

Requirements for issue and service of 3P noticeo Must serve with every third party a 3P notice, copy of the writ or originating summons & of pleadings (if any) served in the

action - O 16, r3(2) r/w O 16 r 3(3)o Personal service is required – O 10 r 1(1) r/w O 16 r3(3)o Rules governing service out of jurisdiction apply – O 11 r/w O 16 r 3(3)o Rules governing appearance apply – O 12 r/w O 16 r 3(3)o TP becomes party to action from time of service of notice - O 16 r 1(3)

How to apply?o By ex parte Summons supported by affidavit O16 r2 stating

Nature of claim made by the Pf in the action

What stage of proceedings in the action have reached Nature of the claim made by the applicant or particulars of the question or issue required to be determined, as the case

may be, and the facts on which the proposed third party notice is based; and If leave is granted then apply for 3P notice and serve through personal service on XX

o Must serve with every third party a 3P notice, copy of the writ or originating summons & of pleadings (if any) served in the action - O 16, r3(2)

Df to enter memorandum of service within 8 days of serving writ on 3P – O 10 r 1(4) 3P to enter memorandum of appearance or he will be in default of appearance and judgment in default can be entered against

_____o If 3P enters appearance, D must apply for directions – (Summons for 3P directions), to be served on all the parties in the

action – O 16, r 4(1)o If no summons served on 3P ⇒ 3P may apply for directions 7 days after entering appearance – r 4(2)o Or alternatively, apply to set aside 3P notice – but unlikely to succeed

Possible court orders –o Dismiss the application for directions & terminate proceedings on 3P notice - O 16 r 4(3)(c)o Give 3P leave to appear at trial and take part - O 16 r 4(3)(a)o Order judgment to be entered for D against 3P - O 16 r 4(3)(b)

Consequences of default of 3P – if 3P defaults in entering appearance / serving defenceo He is deemed to admit any claim stated in 3P notice, and shall be bound by any judgment – r 5(1)o Party NOT in default may apply by summons to enter judgment or any other just order – r 5(2)o Court can @ any time set aside or vary judgment – r 5(3)o Non-default judgment may be entered against TP at or after trial of the main actiono 4th or 5th party notice

O 16 r 9 (1) – TP may issue 4th or 5th party notice Leave is not required if it is a writ action and the TP issues the 4th or 5th party notice before the expiration of 14 days

after the time limited for appearing to the TP notice issued against him What costs granted for work done? Costs in the application costs in the cause or Df costs in the cause.

Requesting for F&BP

Write a letter to P requesting for FABP, giving reasonable time to comply with the request (O 18 r 12(6)). FABP usually made after svc of defence – r 12 (5)

o An order for F&BP is usually made after the the service of defence, hence there would be an issue with O 18 r 12 (5) as defence has not been served, however this issue is resolved since the SOC may be too bare and manifestly inadequate for XX to know exactly the case to be answered (Gwee Kim Bock).

If there is no reply within that reasonable time given, then apply for FABP under O 18 r 12(3) by summons supported by affidavit stating that a letter of request has been sent and not complied with

If the pleadings are bare and do not provide enough material facts, XX should seek for particulars by applying by letter first as this has no cost implications, reasonable time of 14 days should be given for YY to furnish these particulars. (O18 r 12(6).

o However this may mean that XX would be in breach of the 14 day time limit to file a defence under O 18 r 2. XX should concurrently apply to court for an extension of time to file defence or mutually agree for a time extension between his counsel and YY's counsel, costs of this application would likely be costs in the cause or Dfs cost in the cause.

If YY is not receptive, then XX should apply to court by summons supported by affidavit stating that a letter of request has been sent, not complied with and reasonable time has been given.

Costs

o If the application is allowed then court will order OIT and costs to the requesting party fixed at $x if a substantial number of particulars are granted.

o However if application for F&BP is disallowed, there can be no appeal to the court of appeal (s34 SCJA), and XX would likely have to bear the costs of the application as well as Pfs costs for work done.

For other scenarios –see notes [a few granted] – include if have time Must he amend pleadings if requested? To include particulars…- don’t have to amend pleadings if providing F&BP. Under the law,

F&BP are read as part of the pleadings = deemed part of pleadings – O 18 r 12(3) – court may order particulars to stand as part of pleadings

Where name is mistakenly spelt on the writ

Amendment with leave under O 20 r 5(3): an amendment to correct the name of a party if Court is satisfied that the mistake sought to be corrected was a genuine mistake and not misleading or such as to cause any reasonable doubt as to identity of the person intended to be sued; Lim Yong Swan

Amending SOC to add a new cause of action

O 20 r 5(5) read with O 20 r 5(2)

SOC can be amended at any stage and by ex parte summons (if df has not entered appearance) or inter partes summons (if df has entered appearance)

- Amendment may be allowed notwithstanding effect of amendment is to add/substitute a new cause of action, as long as new cause of action arises out of the substantially the same facts – r5(5)

o Lim Yong Swan: A new cause of action arises out of substantially the same facts if there is a sufficient overlap bet the facts supporting the existing claim and those supporting the new claim

- Guiding principle – amendments to pleadings ought to be allowed if they would enable the real qn or issue in controversy between parties to be determined (Wright Norman)

- An amendment which would enable the real issues between the parties to be tried should be allowed subject to penalties on costs and adjournment, if necessary, unless the amendment would cause injustice or injury to the opposing party which could not be compensated for by costs or otherwise. [Ng Chee Weng]

- COST ORDER:o If I get amendment, other party will get costs for fixed at ____ based on costs thrown away, costs of the application and costs

consequential – advice?o If I do not get, other party will only get one set of costs – cost of the application

Right of appeal to CA- If amendment granted no right of appeal to CA – 4 th schedule para (g) - If amendment not granted right to appeal only with leave – 5 th schedule para (a)

Amend SOC without leave

Statement of claim did not plead circumstances Court may dismiss application with costs to defendant – o18 r 19 as it did not disclose a reasonable cause of action

O 18 r 5 allows Pf to alter his SOC O 20 r 3 Amendment done before pleadings close and serve amended pleading on df Other side may not consent to amendment – see registrar cost in the application but will generally be allowed

Discovery against non-party

Yes – O 24 r 6(2): application for discovery against non-party by summons, court will apply the fair disposal/saving of costs test, Shaw v Vauxhall

O 24 r 6(3): must show that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings, and that the person against whom the order is sought is likely to have or have had them in his possession, custody or power O 24 r 7: show necessity What about train of enquiry?

Security for costs 1) Apply for security for costs under s 388(1) Companies Act: where a corporation is P in any action, the court may order security for costs if there is reason to believe that the company will be unable to pay the costs of D if successful in his defence

2) Creative Elegance: test used for s 388(1) and O 23 the same – court considers all circumstances and decides whether it is just to order P to provide security for costs. Difference lies in conditions to be satisfied before provisions can be invoked

XX may apply for security for costs under s 388(1) Companies Act: where a corporation is P in any action, the court may order security for costs if there is reason to believe that the company will be unable to pay the costs of D if successful in his defence. However as the facts are not conclusive on whether corporation XX is unable to pay, a ground more likely to succeed is O23 r1(1)(a).

In this case, XX would rely on O23 r 1(1)(a) as YY is ordinarily out of jurisdiction and lacks fixed assets in Singapore to satisfy a possible costs order (Tjong Very Sumito). The court would then consider all the circumstances and decide if it would be just to order the Pf to provide SFC and one of the tests is the Pfs prospects of success.

Here _____ has a reasonable prospect of success as they can adduce evidence of the alleged defects. However having a reasonable prospect of success does not mean that a court will not grant the defendant SFC since the evidence is not overwhelmingly in favour of the Plaintiffs.

The court may consider is the complexity of the claim and defence (Frantonios Marine). Here the case is arguably complex and would require more pre-trial preparation since there are 3P proceedings which involve an

action in misrep which also has a R prospect of success. This may take more days of trial and have a much higher quantum of potential unrecoverable legal costs for the Df. CakeChat would then subject the Df to much higher financial risk of non-recovery of substantial legal costs. However although the Pfs are financial position is worrying, they could argue that their situation was brought about by

PastryPraise as their defects caused them to stop operations (Sembawang Engineering) although this may fail as PP can argue that CC's business is not doing well as it fell out of favour due to lack of innovation.

If the plaintiffs claim would be stifled if SFC were orderedPresently the Pfs have a slowing business. The Df could argue that the ct should consider that the policy of O23 leaned more towards protecting a df against an unsatisfied costs order.This factor would be in favour of the Pf/Df

Can give SFC in tranches to mitigate harshness – set milestones a. SFC Up to:

i. close of pleadings,ii. set down date,iii. SFD,iv. first day of trial

However the court would also consider that YY was still in business and was just across the causeway and the relative ease of enforcing judgment (Creative Elegance). No assets in Singapore but assets in Msia- property for u to seize – veer in favour of not granting

On balance although there appears to be impending impecuniousity there are also special circumstances which tilt the balance in favour of the pf. Here he has evidence of defects and there are facts which support the misrep by the 3P, this would go towards supporting the Pf's claim against the Df and tilt the balance as awarding SFC would stifle a genuine claim. Hence a court may decide not to award SFC.

Court will order for “Pf to furnish security for costs in the sum of $X by DD/MM/YY by way of a banker’s guarantee / payment to court / solicitor’s undertaking to the satisfaction of the Df

How will court determine how much security to allow? look at complexity (no. of days of trial, no. of witnesses) court will probably break up the costs into different parts, and liberty to Defendant to apply at later stage If Pf is unable to furnish security, then the action is stayed or dismissed

CostsSFC granted: Cost follows the event; Df applies successfully → will get fixed costIf SFC appln denied: Cost to Pf fixed at $x → Df failed – cost follows event

Right of appeal

If security for costs is not granted, there is no right of appeal to CA - 4th schedule para h If granted, respondent can appeal to the CA only with leave: s34(1) SCJA. 5th schedule para b

Where your client refuses to pay your costs

Explain to client he should pay because ____. Failing which apply for an order for taxation

Law firm should apply for an order for taxation under the LPA s120(1) by way of originating summons within 12 months of delivery of the bill. [By summons if there is a pending action].

With order, proceed to draw up bill of costs in accordance with O59 and PD and present bill against client.o According to [79] of Lin Jian Wei, S&C costs are a private matter and proportionality need not apply

Client can contest the bill so Law firm should scrutinize whether the costs were reasonably incurred with the express or implied consent of the client.

If client disagrees with bill, you can negotiate with client If client still disagrees, the bill must go for taxation hearing At taxation hearing, the parties will argue as to what is reasonable and not reasonable. The court will make a finding and tax off or

affirm the bill. Consequences: If taxing Registrar takes off more than 1/6th of the bill, then there are consequences. Penalities under s128: lawyers

have to pay the costs and stamp feesApply for costs for more than 2 solicitors

O59r19- costs for more than two solicitors Certificate of more than 2 counsel – within 1 month – but do it immediately How to apply? Oral application – what is legal test?

o Whether services of more than 2 lawyer is reasonably necessary to adequately present the case. If less than 2 can present then court wont grant certificate. (Singapore airlines)

Various factors to determine amount of costs to allowo O59 r 31(1)

Complexity of item Skill Number Place Urgency Where money or property is involved

Lin Jian Wei –Necessary,Proportionality applies based on Appendix 1 para 1(2)look at it item by item for it to be proportionateReasonableness

Is the service of the writ on the defendant in Malacca through private agent regular?

Private agent could be foreign counsel or clerk of law firm Fortune HK: look to law of the land. If Malacca allows this mode of service, then it is ok. In Ngan Chin Wen Malay court held that svc by pvt agent is ultra vires- infringning sovereignty of Malaysia – official channels –

government consulate/embassy/courts Pacific assets; distinguished Ngan Chin Wen and held that service of SG originating process in malaysia by private agent is valid. But pacific assets is a line of local cases, so it is safer to go through official channels (consular authorities or courts) still.

For a writ to be served in Singapore

O 65 r 2A – there is no need to go through official channels If you choose to go through official channels, follow procedure in O 65 by applying through our own supreme court or consulate (If

there is a civil procedure convention) [Fortune Hong Kong] To effect service, letter of request must contain translation (O65 r 2(2))

Amendment of writ by substituting a new cause of action

Amendments can be applied for even after limitation period has passed so long as new cause of action arises out of the same facts (Lim Yong Swan)

Apply by ex parte summons (or inter partes if Df has entered picture) supported by affidavit It is likely to succeed as it is a new cause of action that falls within O 20 r 5(5) -Adding or substituting a new cause of action and

courts lean towards substantive justice, so that the best case is before the court Costs

o If application granted costs in the cause as it is a new cause of action whose outcome is unknown or pfs costs in the cause to allow Pf to claim his costs in the event he wins

Entering Summary J

If it is clear that the Df has no real defence to the claim, Pf may apply to court for summary judgment against Df

Requirementso SoC must be served and complete and correct: O. 14, r. 1

Where there is error in SoC cannot be corrected/supplemented If defect is of substance, application for summary judgment dismissed: Sheba Gold Mining [1892] QB

o Df must have served a defence to the statement of claim – O14 r1o Affidavit in support of application must depose to all facts supporting the claim O14 r 2 and must be served on df 3 days from

date of filing r 2(2) Must be filed within 28 days after pleadings have closed 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)

O14 r 7: If, on an application under Rule 1, it appears to the Court that the plaintiff knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, then, the Court may dismiss the application with costs.

Test Pf must show that he has prima facie case for judgment WATERTIGHT cause of action [Associated Development v Loong Sie

Kiong] Burden then falls to df, who inorder to obtain leave to defend, must establish that there is a reasonable probability that he has a real

or bona fide defence an amendment to the defence or other pleadings may warrant a revival of the Pfs right to apply for Summary Judgment If 28 days has lapsed, and Pf still has not applied for SJ:

o Timeline in O. 14, r. 14 is extendable (Obegi Melissa and Others v Vestwin Trading Pte Ltd and Another):o Court has the power to grant an extension of time at any point during proceedings in an action: power derived from O.

3, r. 4o May grant extension of time even if extension made only after expiryo Amendments to pleadings ordinarily do not revive pf’s right to apply for SJ (if 28 days has lapsed)o But may do so where there are substantial amendments to pleadings to save parties trouble+expense of a trial (e.g. where

fraud pleaded in orig defence, then withdrawn in amended defence which is served >28 days after close of pleadings)o Just apply to extend by summons supported by affidavit – explain why you have delayed and show how you have a watertight

case

Summary J entered against you

To avoid SJ being entered: Df has to seek leave to defend + show that the dispute concerns a triable issue or that there is some other reason for trial. O 14 r 3(1)

XX should show that his dispute concerns a triable issue by showing cause for trial by affidavit. O 14 r 2(3) by filing and serving on applicant within 14 days after service of applicant's summons and affidavits.

The plaintiff can reply by filing and serving affidavits and if Df wants to reply he has to seek leave of court. Court will assess the Pfs SJ to determine if there are no triable issues as to fact, if the court is satisfied then it will turn to D's reply to

determine if D should be given leave to defend. Possible outcomes

o O 14 rr 3 and 8: court may grant summary judgment for only part of the claim for which no triable issued is raised, and grant leave to defend (whether unconditionally or conditionally) the balance of the claim (assuming triable issue(s) are raised with respect to the remaining parts)

Summary Judgment (r. 3(1)) (in Pf’s favour):o When?o Where no triable issues as to fact, or no bona fide defence [Roberts v Plant] Absence of “some other reason” for a

trialo Where counterclaim is foreign to pfs claim which is admitted, thereby disentitling a stay on the judgment so entered

(AB Contractors v Flasherty Bros)o Where liability is clear but damages have to be assessed under O 37, judgment can still be giveno Df’s application to be set aside, final or interlocutory judgment given (liq / unliq damages)o Costs to P as per scale (O. 59, Part II of Basic Costs para C)o Enter judgment in favour of P where no triable issues as to fact or law or bona fide defence has been raised by Do Where liability is clear but damages have to be assessed, judgment can still be given.o Cost order:

o Costs to pf as per scale (O. 59, Part II of Basic Costs para C)

Dismiss Summary J application with costs – pf shouldn’t have come to court at allo Where Pf’s SoC not complete & correcto If the defect is one of substance the application for summary judgment will be dismissed [Sheba Gold Mining]o Or where Pf knew Df relied on contention which would entitle Df unconditional leave to defend (r 7(1))o Defence so clear & strong higher threshold than ‘Unconditional leave to defend’o Costs order

Cost to df fixed at $x to be paid by pf, fix as per the scale OR costs to the pf (if df takes out counterclaim)

Judgment with stay (O 14 r. 3(2)):o When Df has clearly no defence to pf’s claim, but df raises a plausible counterclaim

o the court can grant P summary judgment on his claim, but stay execution of judgment pending trial of D’s counterclaim (Invar Realty)

o Costs order likely to be as per scale under Part II of Appendix 2 to O59 r 31(2)

Unconditional leave to defend (r. 3(1) and 4(1)) (in Df’s favour):o When?

When Df raises a triable issue of fact- Court unlikely to give leave to defend where there is a triable issue of law, even if issue of law is complex +

highly arguableo Triable issues of law Df should go on O. 14, r. 12. If disagree with ruling, appeal

Df may not be able to pinpoint precise issue of qn in dispute to be tried- But apparent that there ought to be a trial, e.g. full discovery or cross-x required "for some other reason"

[Miles v Bull]- But 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) Triable issue of law raised & Court resolves in df’s favour Df sets up bona fide counterclaim arising out of same subj matter of action arising out of the same subject-

matter of the action and connected with grounds of defence, even if df admits whole of the claim [Hua Khian Ceramics]

o Cost order:

- Typically, costs to the df scaled - Can be costs in the cause, note also r. 7(3) (court reluctant to grant costs to df b’cos so easy for df to show triable

issues of fact/law) Argue that u received defence but defence not supposed to contain evidence – so don't know if

there are triable issues – don't punish the Pf Your honor!

- Costs is at the discretion of the court

Conditional leave to defend (r. 4(1)): When?

o Where defence is a sham [Wing v Thurlow] or shadowy defence [Van Lynn Developments], eg dishonored cheque, df claims did not issue cheque, no witness

o If Df can identify and locate witnesses not sham, shadowy Condition:

- Df must pay Security for judgment sum for Pf in having to defend Df's shadowy claim- Or time or mode of trial

Cost order:- If df satisfies condition (can provide security for pf’s judgment sum) Leave given to df to defend Costs

in the cause- If not Final judgment for the pf, with costs to the Pf as per scale

o Df is granted conditional leave to defend upon furnishing 800k is quantified based on the plaintiffs claim to be paid within 1 month failing which final judgment for the Pf

Conditional leave to defend Where court is not entirely satisfied D has a genuine defence but considers D ought to be given benefit of doubt Raising a barrage of lousy defences sometimes works existence of complex issues is not an answer to a claim for summary judgment Defence is not hopeless but some demonstration of commitment on the part of the D to the claimed defence is called for

Appealable? If given against you, apply for Erinford injunction to stay execution of judgment then file notice of appeal to CA Unconditional leave to defend – not appealable (4th schedule para a) Conditional leave to defend –pf cannot appeal; df can appeal (4th schedule para b) Summary judgment – appealable as of right (silent)

Expert witnesses Expert witnesses have to provide an experts report to the court – O40A r 3 but the other side may also want to bring in their own witnesses.

In this case, there may be a cross-examination in the face of conflicting expert opinion (Muhammad Jefrry). The court would assess the expert witnesses based on

proficiency, - experience, skills, knowledge acquired by expert Court would also look at their qualifications – whether they are from Timbuktu university or from Harvard However, skill can be acquired by special study or experience (Leong Wing Kong v PP)

procedure and – methodology adopted by expert to reach conclusion Ong Pang Siew – using hokkien, following procedure

Nadasan Chandra – failure to provide separate notation for different allele Where there is conflicting evidence between experts, it will not be the sheer number of experts but the

consistency and their logic of evidence that is paramount (Sakthivel) precision –depth of analysis

Tan Mui Teck – 24 specimens vs 2 specimens No short cuts

Striking out show defence discloses no reasonable defence – under O 18 r 19 r1(a) by summons – no affidavit so plain and obvious that there is no case apply before pleadings are closed must be plain and obvious that there is no defence if defence struck out, costs awarded to Pf and final judgment entered against Df If defence not struck out as courts may find it too draconian and strikes out a specific plea instead, party who applies will get costs as

he was right to apply If struck out, the Df has automatic right of appeal to CA

If no defence then? Judgment entered against Df – final judgment entered for the Pf for the full sum of $xBut this is unlikely to succeed as it is a draconian measure, more likely that a single plea will be struck out than the entire defence.

Offer to settle Another option would be to make an offer to settle under O 22A. The advantage of using an OTS is to ensure cost dynamics through early settlement as well as allowing for the possibility of Dalvey to have P&P costs on an indemnity basis paid by the KBC if they reject an offer higher than the judgment sum. An OTS is not to be filed and there must be no reference in any pleading or affidavitto the fact that such offer has been made. (O22A r 5(1)) Here as the prima facie facts show a weak case for KBC Sdn Bhd, it is advised that D makes an OTS much lower than KBC's claim. It is likely that KBC would not accept this initial offer and there would be a bargaining process which may have several outcomes.

Where Offer Made By Plaintiff

If the plaintiff makes an offer to settle: That is not accepted; and The plaintiff wins; and The plaintiff’s award is equal to or more than the offer the plaintiff made; and The court is satisfied the plaintiff was willing and able to carry out the offer; then –the defendant must pay the plaintiff’s costs on the indemnity basis from the date of the offer (unless the defendant can show another order is appropriate) (r 360(1)).

If the plaintiff makes an offer to settle: That is not accepted; and The plaintiff wins at trial; but The plaintiff’s award is less than the offer the plaintiff made; then –the defendant pays the plaintiff’s costs on a standard basis (r 681(1) + 702).

If the plaintiff makes an offer to settle: That is not accepted; and The defendant wins at trial; then –

the plaintiff pays the defendant’s costs on a standard basis (r 681(1) + 702).

Where Offer Made By Defendant

If the defendant makes an offer to settle: That is not accepted; and The plaintiff wins at trial; and The plaintiff’s award is less than or equal to the offer the defendant made; and The court is satisfied the defendant was willing and able to carry out offer; then –the court must (unless a party can show another order is more appropriate): Order the defendant to pay the plaintiff’s costs on the standard basis up to the day the offer was served; and Order the plaintiff to pay the defendant’s costs on the standard basis after the day the offer was served (r 361(1)&(2)).

If the defendant makes an offer to settle: That is not accepted; and The plaintiff wins at trial; and The plaintiff’s award is more than the offer the defendant made; then –the defendant pays the plaintiff’s costs on a standard basis.

If the defendant makes an offer to settle: That is not accepted; and The defendant wins at trial; then –the plaintiff pays the defendant’s costs on a standard basis

Examine debtor for assets

Where debtor does not pay up after you asked Apply by ex parte summons supported by affidavit to get leave to apply for an EJD – O 48 Obtain order to require debtor to attend before registrar to be orally examined on what property he has Order required to be serve personally on judgment debtor Debtor answers questions on oath and can be liable for perjury Plan next step after knowing what property debtor has

Writ of seizure and sale on movable property

Procedure: Apply to the Sheriff (in the HC) / the Bailiff (in the Sub court) → who will go to debtors house and will stick stickers, and on appointed day, sell off for auction – O 45 r 4

Get writ of delivery to recover property

Committal Applies to WSS on movable pty Where a person refuses to comply with the orders or judgment Procedure (2 stages):

o Every application for Committal (O 52) must be made only with leave.o 1. Obtain leave by OS/ Summons [ex parte] (If there is an existing parent action, can use summons) supported by a

statement setting out details of applicant and other party. must have personal service O 52 r 3o 2. After leave is granted, application for the order must be made by summons in the proceedings in which leave was

obtained. Court hears the substance and decide whether Df should go to jail.WSS on immovable pty O

Procedure:o Apply for order by ex parte summons supported by affidavit

46/47 Identify judgment to be enforced Stating name of debtor, interest sought, amount remaining unpaid

o Register order with SLA to lodge caveat to protect against other interests; debtor in order to sell property, will ask creditor to dislodge caveat so that sale can take place (O 47, r 4(1)(d))

Tenancy in common: equal shares; joint tenancy: survivorship) -Focal Finance: If its joint tenancy, cannot enforce against both tenants - BUT Tan Sook Yee: disagrees, should allow enforcement

Note: O 17 – interpleader (for e.g. debtor’s wife can challenge and say a particular item is hers) Valid for 12 months beginning with date of issue Extension of time: period of 12 months from day the order was made (O 46 r 6) Must be made before expiry? Judgment creditor may apply for rents and profits (O 47 r 5(d))

WSS On stocks and shares (O 47 r 6)

Procedure: Lodge caveat at the Central Depository (CDP) to prevent debtor from transacting on stocks/shares The Sheriff must sign a notice to be addressed —

o -in the case of Government stock, to the Accountant-General;o -in the case of stock listed on the Stock Exchange of Singapore Ltd. and held under a central depository system, to the

depository for the time being and the company or corporation concerned;o -in the case of other stock, to the company or corporation concerned; ando -in the case of stock standing in the name of the Accountant-General, to the Accountant-General,

and together with a copy of the writ of seizure and sale must be served by the Sheriff by any mode of service as he thinks fit. (b) A copy of the notice must at the same time be sent to the judgment debtor at his address for service. (c) On receipt of such notice, the judgment debtor must hand over to the Sheriff at his office any indicia of title in his possession

relating to such stock, or where any such indicia of title are not in his possession, must notify the Sheriff in writing of the name and address of the person having possession thereof.

(d) The Sheriff must further send a copy of the notice to any person, other than the judgment debtor, in whose possession he has reason to believe any such indicia of title to be.

(e) After the receipt of any notice sent, and unless the notice is withdrawn, no transfer of the stock or any interest therein, as the case may be, shall be registered or effected unless the transfer be executed or directed by the Sheriff, and any such transfer or direction by the Sheriff shall have the same effect as if the registered holder or beneficial owner of such stock had executed the transfer, and shall be dealt with accordingly.

Stop orders – apply for stop order if u have beneficial interestStop orders (O 50)

- Works hand in hand with the WSS of stocks and shares.- Any person claiming to be beneficially entitled to an interest in any securities, who wishes to be notified of any proposed transfer /

payment of those securities – may apply for a Stop order- Court order to stop transfer of any assets- Procedure:

o File an affidavit identifying securities in and question and describing his interesto Notice signed by deponent to affidavit

Garnishee - Procedure:o First stage: Application for garnishee order nisi must be made by ex parte summons supported by an affidavit in Form

102. [ex parte] once order nisi is obtained, serve on garnishee [by ordinary service] to bind in the hands of the garnishee the debt specified in the order

o Second stage: Garnishee will confirm whether monies are due and owing [inter parte] Order if $ due & owing: “Garnishee order (nisi) made absolute in the sum of $x as per scale” garnishee must pay

money to the judgment creditor Order if no $ due & owing: “Garnishee order (nisi) discharged with costs (to garnishee)”

o Where on the further consideration, the garnishee does not attend or dispute the debt due from the judgment debtor, the court may make an order absolute against the garnishee.

o Costs: scaled costs- "costs to judgment creditor as per scale" paid by judgment debtor costs added onto judgment debt [debtor has money and was not cooperating]

- Bank will go to court where there is a dispute over whether there are monies- Salaries cannot be garnished (American Express Bank v Abdul Manaff)

o BUT GARNISH BANK ACCOUNT SALARY IS CREDITED INTO Only if salary is credited into bank account Find out which day it is credited to garnish on that day itself Apply for garnishment order every month on the date the salary is credited

- Garnish fees from lawyer – but may conflict with professional privilege (Chua Su Yin)o Evidence as to whether a lawyer holds or has paid or received moneys on behalf of a client has been judicially regarded as

evidence of an objective fact or an act or transaction and not a communication.- Hence at common law such evidence is not protected from disclosure by the privilege