[1998] SGCA 25

In the Court of Appeal of the Republic of Singapore

[1998] SGCA 25

CA 52/1998

Between

Chan Kern Miang

… Appellant

And

Kea Resources Pte Ltd

… Respondent

grounds of decision

This judgment is subject to final editorial corrections approved by the court and/or redaction pursuant to the publisher’s duty in compliance with the law, for publication in LawNet and/or the Singapore Law Reports.

Chan Kern Miang v Kea Resources Pte Ltd

[1998] SGCA 25

CA 52/1998
Chao Hick Tin J; Lai Kew Chai J
20 April 1998

1 CHAO HICK TIN J

4 Background

6 Kea Resources, a company incorporated in October 1988, is engaged in the business of shipbuilding and the sale and purchase of vessels. Then it had two shareholders, Kea Holding Pte Ltd, which held 75% of the shares, and Ngiam, who held the remaining 25%. Ngiam was the managing director of Kea Resources from 18 October 1988 to 11 August 1993 when he resigned.

15 Decision below

17 In his brief grounds of decision the learned judge gave the following reasons for the decisions he made: (i). Kea Resources had almost concluded its case. To compel it to add another party as a second defendant at this stage of the proceedings, which would require Kea Resources to revise its statement of claim, and literally to start all over again, was oppressive; all the more so when Kea Resources had entered into a settlement agreement with Ngiam.

18 (ii). Chan had plenty of time to apply to add Ngiam as a party but chose not to do so.

19 (iii). Costs could not adequately compensate the plaintiffs for the loss of time and effort if the application had been allowed.

20 (iv). For the same reasons, the addition of a third party at this juncture was equally objectionable. It would enable Chan to achieve indirectly what he could not achieve directly.

21 (v). Vacating the hearing dates was disallowed as Chan and their solicitors had ample time to arrange for another counsel/solicitor in the same firm to take over the conduct of the case and vacating the five days would cause `administration difficulties and loss of public funds.`

22 Vacating of dates

24 We shall first deal with the issue of vacating hearing dates. In recent years, in the interest of prompt administration of justice and efficiency and to avoid wastage of judicial time, the High Court adopted a strict view on the question of vacating hearing dates. Strong compelling grounds must exist before the court will consider the exercise of its discretion.

27 Joining Ngiam as co-defendant

29 The application of Chan to require the joining of Ngiam as a co-defendant was made pursuant to O 15 r 6(2)(b) of the Rules of Court which reads:

6(2) Subject to the provisions of this Rule, at any stage of the proceedings in any cause or matter, the Court may, on such terms as it thinks just and either of its own motion or on application - (b) order any or the following persons to be added as a party, namely: (i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in the cause or matter may be effectually and completely determined and adjudicated upon; or (ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

30 Supreme Court Practice para 15/6/7 to support his contention that Chan`s application should be granted:

In this respect, it would therefore seem that the objects of para 2(b) as to joinder of parties are broadly the same as the objects of the rules relating to third party proceedings, namely (a) to prevent multiplicity of actions and to enable the Court to determine disputes between all parties to them in one action, and (b) to prevent the same or substantially the same questions or issues being tried twice with possibly different results.

32 (ii). conspiring with Ngiam to injure Kea Resources; and

33 (iii). knowingly assisting, or knowingly receiving proceeds from, Ngiam`s breach of trust,

35 Our decision

37 The first point we wish to make is that while O 15 r 6(2)(b) allows for the addition of a party at any stage of the proceedings, including the appeal stage as was the case in Dollfus Mieg et Cie SA v Bank of England [1951] Ch 33, it is a matter of discretion, to be decided by the court as it thinks just. It is purely an enabling provision. The court will exercise it taking into account all the pertinent circumstances of the case.

42 Ketteman v Hansel Properties Ltd [1988] 1 All ER 38 at p 62 are apt, even though they were made in the context of an application to amend:

We can no longer afford to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in a more leisured age. There will be cases in which justice will be better served by allowing the consequences of the negligence of the lawyers to fall on their own heads rather than by allowing an amendment at a very late stage of the proceedings.

43 Walker & Knight v Donne, Mileham & Haddock ( The Times , 9 November 1976) to demonstrate that leave to make a third party a defendant was granted even after trial commenced. It ought to be borne in mind that in that case only one witness had been called (before the long vacation intervened) and it was anticipated that the continued hearing will take from Fall until Easter the next year.

44 Brett v Fleet [1981] 116 DLR (3d) 516 leave to add in additional defendants were made at the commencement of the trial. In Collin Hotels Ltd v Surtees, Schutte & Oliver [1984] 5 WWR 277, two parties were added before the commencement of trial.

45 Shinko Machinery Co v Wong Hanson & Anor (Unreported) a judgment of Chan Sek Keong J (as he then was), the court granted leave to the defendants to add one Mr Lim as a party to the proceedings apparently at the end of the trial. There, the defendants counterclaimed against the wrong party. However, the learned judge found that the confusion in the mind of the first defendant was caused entirely by Mr Lim. It is clear that there were special circumstances why the learned judge there granted leave to add Mr Lim as a party at that hour. This can be seen from the following portion of the grounds of decision:

Having regard to the evidence and also the fact that the defendants did not have the benefit of professional representation at the trial, I did not consider it fair that, because of the technical rule that a partner in a firm may not be made liable for his debts in another firm of which he was the sole-proprietor and therefore preventing a set-off of credits and debits, the defendants should be left without any remedy. Accordingly, I granted leave to the defendants to add Mr Lim ...

46 Dollfus Mieg , supra, two defendants were added at the appeal stage. There, the case concerned some gold-bars recovered in Germany during the concluding stages of the Second World War and placed in the custody of the Bank of England by the Governments of the United Kingdom, the United States of America (USA) and France. The plaintiff claimed for the gold-bars. The governments of USA and France applied to intervene as defendants. The court granted the application pursuant to r 6(2)(b)(i) as the two governments had a right nearly akin to a proprietary right and their intervention was essential to ensure that all matters in the cause were effectually and completely determined. It would be noted that the `cause` there was the delivery of the gold-bars, a subject matter in which the two foreign governments had an interest.

49 Effect of settlement agreement

51 The final point concerns the settlement agreement. The fact that there is a settlement agreement in writing between Kea Resources and Ngiam is not in dispute. In our view, the question whether that agreement would release Chan from any liability to Kea Resources is really one of law. That point can be taken without any need to make Ngiam a party.

Chao Hick Tin J
Lai Kew Chai J

Mohan Pillay and Chan Hock Keng (Wong Partnership) for the appellant
Hee Thee Fong and Doris Lee (Hee Theng Fong & Co) for the respondents