1 Cur Adv Vult

2 This appeal is against the decision of the learned district judge dismissing the appeal of the appellants from the decision of the deputy registrar dated 10 September 1987 giving judgment on admission for the sum of $15,375.40 on an application made pursuant to O 27 r 3 of the Subordinate Courts Rules 1986.

3 The facts of this case arise from events at and subsequent to:

4 The appellants, on the other hand, contended that there was no oral agreement with regard to a specific date for the delivery of vacant possession of the demised premises. Alternatively, the appellants contended that it can be reasonably implied that vacant possession of the demised premises can only be given to the respondents upon the issuance of a temporary occupation licence (TOL). The TOL was issued on 14 June 1982 but the respondents refused to take possession of the demised premises despite the notice to do so by the appellants.

5 The respondents thereafter commenced an action in DC(T) 13257 of 1986 on 9 July 1982 against the appellants to claim that they have validly rescinded the agreement to lease, that the deposit be returned to them and damages to be paid by the appellants to the respondents.

6 The appellants in their defence denied any agreement to deliver vacant possession by a specific date and treated the respondents` purported rescission as wrongful and amounted to a repudiation of the agreement. Accordingly, the appellants have counterclaimed against the respondents for a declaration that the agreement has been repudiated by the respondents and that the appellants are entitled to forfeit the deposit.

7 While awaiting trial, the respondents on 7 July 1987 filed an application for judgment on admissions, pursuant to O 27 r 3 of the Subordinate Courts Rules 1986 (the application). The admissions are allegedly contained in or implied from:

8 The deputy registrar in the subordinate courts gave judgment in favour of the respondents on the application with costs of the action to be taxed. The appellants appealed against this decision and the appeal was heard by a learned district judge, who on 6 November 1987 and on 9 November 1987 gave his order dismissing the appeal with costs of $300 to the respondents.

9 On 12 November 1987, the appellants filed a notice of appeal to the High Court but was requested by the officials at the registry of the subordinate courts to file an application requesting leave to appeal to the High Court. The appellants filed an application on 17 November 1987 requesting leave to appeal to the High Court and the application was heard on 21 November 1987 by the learned district judge. After hearing the application by the appellants on 21 November 1987, the district judge declined to grant the appellants leave to appeal and costs of $300 was awarded to the respondents.

10 Nevertheless, the appellants filed their appeal on 23 November 1987 and requested that any objection to the appeal be heard by a judge in the High Court.

11 From the aforesaid it is clear that there are two issues pertaining to this appeal:

12 The appellants` right to appeal The learned district judge was of the view that pursuant to O 55 r 1 of the Subordinate Courts Rules 1986, there is no right of appeal against his decision of 9 November 1987. Order 55 r 1(5) states:

13 Counsel for the respondents took the preliminary objection to the hearing of this appeal on the basis that the appellants have already exhausted their last recourse which is an appeal to the learned district judge in chambers pursuant to O 55 r 1 and that there must be finality to a decision on an interlocutory matter. In addition, the appellants have made an application for leave to appeal and this application was refused by the learned district judge. Accordingly, the respondents` counsel contended that if the hearing of the appeal is allowed to be heard, then:

14 On the other hand, the appellants` counsel contended that:

15 The appellants` counsel contended that the district judge had misconstrued the application of O 55 r 1(5) in that the word `final` there does not necessarily exclude the right of an aggrieved litigant from appealing against the decision of the judge in chambers.

16 Relying on 26 Halsbury`s Laws of England (4th Ed) para 505 and the cases of Marchioness of Huntley v Gaskell [1905] 2 Ch 656 and Colt Industries Inc v Sarlie (No 2) [1966] 3 All ER 85, the word `final` merely means a conclusive determination of the principal matter in question and establishes the right of the plaintiff or the liability of the defendant on the merits of the case as opposed to an interlocutory order.

17 Accordingly, I am of the view that it does not mean that there is no right of appeal from the decision of the learned district judge.

18 In support of this construction of O 55 r 1(5), I was referred to s 42 of the Subordinate Courts Act (Cap 321) which states:

19 Hence, unless otherwise stated, `final` means final and conclusive, rather than excluding the right of appeal. Furthermore, s 47 of the Subordinate Courts Act states:

20 Section 21(1) of the Supreme Court of Judicature Act (Cap322) states:

21 It is clear that pursuant to s 21 of the Supreme Court of Judicature Act, there is a substantive right of appeal to the High Court from ` any decision ` (emphasis is mine) of the district court or magistrate court conferred by the Supreme Court of Judicature Act, and the Subordinate Courts Rules 1986 merely prescribe the procedure of the appeals and cannot take away the right of appeal given by the Supreme Court of Judicature Act.

22 It was also the submission of the appellants` counsel that judgment on admissions granted pursuant to O 27 r 3 of the Subordinate Courts Rules 1986 is a final judgment/order and that an appeal can arise therefrom without the need for leave for such an appeal.

23 If the decision of the district judge pursuant to O 55 r 1(5) is final, then giving the rule its literal reading, an appeal should arise therefrom as of right without the requirement for leave to appeal.

24 There are two tests to be applied as to whether an order is an interlocutory or a final order. The first test being the test enunciated in Bozson v Altrincham UDC [1903] 1 KB 547 (the Bozson test) and the second test being the testenunciated in Salaman v Warner [1891] 1 QB 734 (the Salaman test).

25 The distinction between the two tests is that in the Bozson test, one looks at the order or judgment made and asks oneself whether the judgment or order made finally disposed of the rights of the parties.

26 In the Salaman test, one looks at the application and if a decision thereon, whichever way it is given, finally disposes of the matter in dispute, then it is a final order. But if the decision is given one way, it will finally dispose of the matter in dispute, but if given in the other way, it will allow the action to go on, then it is not a final but an interlocutory order.

27 Whilst the English courts have consistently adopted the Salaman test (see White v Brunton [1984] QB 570), there are two relevant local decisions wherein the courts have adopted the Bozson test.

28 The first decision is that of the Federal Court sitting in Singapore in Tee Than Song Construction Co v Kwong Kum Sun Glass Merchant [1967] 2 MLJ 205 and the subsequent decision of the Privy Council in Haron bin Mohd Zaid v Central Securities (Holdings) [1982] 2 MLJ 94 . In these cases, the Federal Court and the Privy Council have respectively decided to adopt the Bozson test as the applicable test. I cannot differ from the decisions in the aforesaid two cases and I am persuaded by counsel for the appellants to adopt the Bozson test as the test applicable in the Singapore court.

29 Clearly by application of this test to the present facts, the judgment on admission for the sum of $15,375.40 made pursuant to O 27 r 3 is a final order and an appeal must necessarily lie therefrom without the need for leave to appeal.

30 Accordingly for the aforesaid reasons, I am of the view that the appellants do have a right of appeal and the High Court has jurisdiction to hear this appeal.

31 Merits of the appeal Having decided the preliminary issue in favour of the appellants, I will now look into the merits of the appeal, proper. I note that the admission is alleged to be expressed in or implied from the confirmation letters of 28 May 1982, 27 August 1984 and 4 September 1984 from the appellants` auditors to the respondents. These are informal admissions as opposed to formal admissions in pleadings. Hence, the appellants are able subsequently to seek to explain away or contradict these `admissions` and the court is to consider the evidentiary weight to be given to these `admissions`.

32 Before deciding on the question of whether the confirmation letters constitute an admission by the appellants and the weight to be given to such admission, I am perturbed by the fact that the admission pertaining to the deposit is one which is inextricably intertwined with the issues at the trial, ie whether the appellants are entitled to forfeit the deposit which in turn will revolve around finding of fact by the trial judge as to whether the oral representations as alleged by the respondents were in fact made by the appellants. If judgment on admissions is given, then it follows that the basis of the trial of this issue will be extinguished. Furthermore, it would be an anomalous situation if the respondents should be given judgment on the admissions purportedly expressed or implied from the confirmation letters if the trial judge subsequently, as a finding of act, holds that no oral representations were made by the appellants and that the respondents` purported rescission was wrongful and amounted to a repudiation of the agreement to lease and flowing therefrom the appellants were entitled to forfeit the deposit.

33 Accordingly, I am of the view that an application under O 27 r 3 should not have been taken out by the respondents under such circumstances, and I will allow this appeal and make the following orders, namely:

34 Order accordingly.