Case Details
- Citation: [2022] SGCA 27
- Title: Shee See Kuen & 4 Ors v PT Trikomsel Oke Tbk
- Court: Court of Appeal of the Republic of Singapore
- Date: 29 March 2022
- Judges: Judith Prakash JCA
- Procedural History: Ex parte applications for leave to serve originating summonses out of jurisdiction; applications to transfer appeals from the Appellate Division of the High Court to the Court of Appeal
- Originating Summonses / Summonses: CA/SUM 4/2022 (SUM 4) and CA/SUM 5/2022 (SUM 5); CA/OS 2/2022 (OS 2) and CA/OS 3/2022 (OS 3)
- Originating Summonses in the High Court (for transfer): AD/CA 4/2021 (AD 4) and AD/CA 5/2021 (AD 5)
- High Court suits: HC/S 564/2018 (Suit 564) and HC/S 565/2018 (Suit 565)
- Plaintiffs/Applicants: Shee See Kuen; Joveen Miu Harn Peng; Ng Seng Yu; Ng Ah Moi; Leong Churn Meng (Liang Junming) (in SUM 4); and in OS 3: Leong Churn Meng (Liang Junming); Ong Chong Hock Joseph; Chin Mui Leng; Tan Guan Lee Company Ltd; Ng Seng Yu; Tong Sau Kwan; William Koh Chee Wei; Lin Zhuo @ Lin Ning; Yeo Yu Kin
- Defendant/Respondent: PT Trikomsel Oke Tbk (“PT Trikomsel”)
- Nature of dispute: Damages assessment following findings of fraudulent misrepresentation in offering circulars for “Senior Fixed Rate Notes”; dispute over entitlement to punitive and aggravated damages
- Key procedural issue: Whether the Court of Appeal must grant fresh leave to serve the transfer applications (OS 2 and OS 3) out of jurisdiction when the High Court had already granted leave to serve the underlying writs out of jurisdiction
- Legal areas: Civil Procedure; Service out of jurisdiction; Transfer of appeals; Pleading of damages
- Statutes Referenced: Access to Justice Act 1999
- Cases Cited (as reflected in metadata): [2021] SGCA 111; [2021] SGCA 115; [2022] SGCA 9; [2022] SGCA 27; [2022] SGCA 8
- Judgment length: 17 pages; 4,877 words
Summary
This Court of Appeal decision addresses a narrow but practically important procedural question: when a party seeks to transfer an appeal from the Appellate Division of the High Court to the Court of Appeal, is fresh leave required to serve the transfer application out of Singapore if the High Court had already granted leave to serve the originating writs out of jurisdiction in the underlying suits?
The Court held that, on the proper construction of the Rules of Court governing service out of Singapore, the “originating process” for the purpose of the no-fresh-leave rule refers to the writ or originating summons that was the subject of the original leave. Where leave had already been granted for service of the writs in the underlying suits and those writs had been served, the applicants did not need separate leave to serve the later transfer applications out of jurisdiction. The Court’s reasoning turned on the distinction between the originating process and interlocutory steps taken after the originating process has been disposed of.
Although the case arose in the context of a damages dispute involving allegations of fraudulent misrepresentation and the pleading requirements for punitive and aggravated damages, the Court’s decision in this judgment is focused on service mechanics and the scope of the “no fresh leave” principle. The practical effect is to reduce procedural duplication and to clarify how service leave operates across stages of appellate transfer.
What Were the Facts of This Case?
PT Trikomsel Oke Tbk is an Indonesian company with its address in Indonesia. The applicants were plaintiffs in two High Court suits, Suit 564 and Suit 565, in which PT Trikomsel was one of the defendants. The suits concerned investments in “Senior Fixed Rate Notes” and the applicants’ purchase of those notes based on offering circulars. The High Court entered interlocutory judgment for damages to be assessed, and PT Trikomsel was found liable for fraudulent misrepresentations contained in the offering circulars.
After liability was established, the matter proceeded to assessment of damages. At the time of the damages assessment hearings, the writs of summons against other defendants either expired without being served or were set aside. As a result, PT Trikomsel was the only remaining defendant in both suits. The applicants obtained damages on a compensatory basis. However, they were dissatisfied because they did not obtain punitive and aggravated damages.
The High Court Judge rejected the applicants’ claims for punitive and aggravated damages on the basis that those heads of damages were not specifically pleaded. The applicants therefore appealed to the Appellate Division of the High Court (AD 4 and AD 5), challenging the dismissal of their claims for punitive and aggravated damages. The transfer applications (OS 2 and OS 3) were then filed in the Court of Appeal to transfer those appeals from the Appellate Division to the Court of Appeal.
OS 2 and OS 3 were filed on 26 January 2022. The applicants relied on the contention that a Court of Appeal decision, Noor Azlin bte Abdul Rahman and another v Changi General Hospital Pte Ltd [2021] SGCA 111 (“Noor Azlin”), was implicated, and they sought to persuade the Court of Appeal to reverse its holding that punitive and aggravated damages must be specifically pleaded. Registry letters dated 27 January 2022 directed PT Trikomsel to file its papers by 7 February 2022. However, at a Case Management Conference on 8 February 2022, it emerged that the applicants had not served the transfer applications on PT Trikomsel.
Further, the letters were dispatched to PT Trikomsel’s previous address in Jakarta (Address 1) rather than its last known address in Central Jakarta (Address 2). The applicants explained that Address 1 had been stated in the transfer applications because they learned only after issuing the proceedings that PT Trikomsel had changed its registered address to Address 2. Importantly, for the purpose of the Court of Appeal’s analysis, the applicants had previously been granted leave to serve the writs in Suit 564 and Suit 565 on PT Trikomsel at Address 1 in January 2019, and the memoranda of service dated 30 May 2019 showed that the writs were in fact served on PT Trikomsel at Address 2.
What Were the Key Legal Issues?
The Court of Appeal identified two issues for determination in SUM 4 and SUM 5. First, it had to decide whether leave to serve out of jurisdiction must be separately granted by the Court of Appeal for the transfer applications (OS 2 and OS 3) when the court below (the High Court) had already granted leave for service out of jurisdiction of the originating processes (the writs) in the underlying suits.
Second, if fresh leave was required, the Court had to determine whether the requirements for obtaining such leave were met. This second issue necessarily involved the jurisdictional gateways for service out of Singapore under Order 11 of the Rules of Court, including whether the claims were founded on tort committed in Singapore or damage suffered in Singapore caused by tortious acts or omissions wherever occurring, or whether the claim was founded on a cause of action arising in Singapore.
Although the underlying substantive dispute concerned punitive and aggravated damages and pleading requirements, the Court’s decision in this judgment is procedural. The key legal question is the scope of the “no fresh leave” rule in Order 11 r 8(1) of the Rules of Court, and specifically what constitutes the “originating process” for that rule.
How Did the Court Analyse the Issues?
The Court began by clarifying that the applicants were correct to commence the transfer applications by originating summonses. It referred to the relevant procedural provisions governing applications to the Court of Appeal and the transfer of appeals under s 29D(1)(a) of the Supreme Court of Judicature Act, read with Order 56A and Order 57 of the Rules of Court. The Court emphasised that, before the transfer applications are granted, the appeals are not yet before the Court of Appeal, and the procedural form matters.
Having confirmed the procedural form, the Court turned to the service-out-of-jurisdiction framework. The starting point is that service of an originating process out of Singapore is permissible only with the leave of court (Order 11 r 1(1) ROC). The requirements for such leave are set out in Order 11 r 2 ROC. However, Order 11 r 8(1) ROC provides that leave shall not be required to serve “any summons, notice or order issued, given or made in any proceedings” where leave for service of the originating process has already been granted.
The critical interpretive question was whether, for the purpose of the transfer applications, the “originating process” in Order 11 r 8(1) refers to the writs (the originating processes in the underlying suits) or instead refers to OS 2 and OS 3 themselves. If it referred to the writs, then fresh leave would not be required because leave had already been granted for service of the writs. If it referred to OS 2 and OS 3, then the Court would need to grant fresh leave to serve those transfer applications out of jurisdiction.
To resolve this, the Court examined the definitions in Order 1 r 4(1) ROC. “Originating process” is defined as a writ of summons or an originating summons. “Originating summons” is defined as every summons for the commencement of proceedings other than a writ of summons. “Summons” is defined broadly as every summons in a pending cause or matter, and the Court noted that such summonses are interlocutory in nature. The Court also drew on authority to distinguish between originating summonses that are truly “originating processes” and those that, although commenced by originating summons, are in substance interlocutory steps.
In this regard, the Court relied on the principle derived from Jurong Shipyard Pte Ltd v BNP Paribas [2008] 4 SLR(R) 33 (“Jurong Shipyard”), where the Court considered whether an originating summons used to seek an injunction was interlocutory in nature after the statutory demand had been disposed of. The Court’s reasoning in Jurong Shipyard supported the proposition that not all originating summonses are necessarily “originating processes” for the purposes of the service regime; the substance of the step taken matters.
Applying this approach, the Court held that OS 2 and OS 3 were not, in substance, originating processes. They were better characterised as summonses made in a pending cause or matter—interlocutory steps in the appellate transfer process. Consequently, Order 11 r 8(1) ROC operated to remove the need for fresh leave. Since leave had already been granted for service of the writs in Suit 564 and Suit 565, and those writs had been served, the applicants did not need separate leave to serve OS 2 and OS 3 out of jurisdiction.
On the facts, the Court also considered the service history. The applicants had been granted leave to serve the writs at Address 1, and the memoranda of service showed that the writs were served at Address 2. This supported the conclusion that the underlying jurisdictional foundation for service out of Singapore had already been established and that the later transfer applications were procedural steps within the same proceedings rather than new originating processes requiring fresh leave.
Because the Court answered Issue 1 in the negative (ie, fresh leave was not required), it did not need to decide Issue 2 in the same way as it would have if fresh leave were mandatory. The decision therefore primarily clarifies the scope of Order 11 r 8(1) ROC and the meaning of “originating process” in the context of appellate transfer.
What Was the Outcome?
The Court granted the ex parte applications (SUM 4 and SUM 5) for leave to serve the transfer applications out of jurisdiction, but the key doctrinal point was that such fresh leave was not strictly necessary because the “originating process” had already been the subject of leave in the underlying suits. The practical effect is that the transfer applications could proceed without being derailed by a technical objection to service leave.
In other words, the Court’s decision ensured that the appellate transfer process was not obstructed by procedural duplication, while also providing guidance on how Order 11 r 8(1) ROC should be applied when later interlocutory steps are taken after originating process service leave has already been granted.
Why Does This Case Matter?
This case matters because it provides authoritative guidance on the interaction between service out of jurisdiction and subsequent procedural steps in the same litigation. Practitioners often face the question whether each new application stage—particularly appellate steps—requires its own leave to serve out of Singapore. The Court’s analysis clarifies that the “no fresh leave” rule in Order 11 r 8(1) ROC can apply to later summonses, notices, and orders, provided that the originating process for which leave was granted has already been served.
For litigators, the decision reduces the risk of avoidable procedural challenges. If a party has already obtained leave to serve the writs (or originating summons) in the underlying suits, later interlocutory applications in the same proceedings—such as transfer applications—may not require fresh leave, depending on their substantive character. This is especially relevant where the opposing party is overseas and service logistics are complex, as in this case where the respondent’s address changed between the filing of the transfer applications and the dispatch of registry directions.
From a doctrinal perspective, the Court’s reasoning also reinforces the importance of substance over form in procedural classification. By drawing on Jurong Shipyard, the Court treated the transfer applications as interlocutory steps rather than new originating processes. This approach will likely influence how courts assess other “originating summons” steps that are, in substance, interlocutory.
Legislation Referenced
- Access to Justice Act 1999
- Supreme Court of Judicature Act (s 29D(2)(c)(ii) and s 29D(1)(a)) (as referenced via the ROC provisions in the judgment extract)
- Rules of Court (2014 Rev Ed), Order 11 (including rr 1, 2, 8), Order 1 r 4(1), Order 56A r 12(5), and Order 57 r 16(1)
Cases Cited
- [2021] SGCA 111 (Noor Azlin bte Abdul Rahman and another v Changi General Hospital Pte Ltd)
- [2021] SGCA 115 (Wei Fengpin v Raymond Low Tuck Loong and others)
- [2022] SGCA 8 (Choo Cheng Tong Wilfred v Phua Swee Khiang and another)
- [2022] SGCA 9 (Milaha Explorer Pte Ltd v Pengrui Leasing (Tianjin) Co Ltd)
- Jurong Shipyard Pte Ltd v BNP Paribas [2008] 4 SLR(R) 33
Source Documents
This article analyses [2022] SGCA 27 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.