Case Details
- Citation: [2022] SGCA 27
- Title: Shee See Kuen and others v PT Trikomsel Oke Tbk and another matter
- Court: Court of Appeal of the Republic of Singapore
- Date of Decision: 29 March 2022
- Judges: Judith Prakash JCA
- Procedural Context: Court of Appeal — Originating Summonses Nos 2 and 3 of 2022 (Summonses Nos 4 and 5 of 2022)
- Originating Summonses: CA/OS 2/2022 and CA/OS 3/2022
- Applications: CA/SUM 4/2022 and CA/SUM 5/2022 (ex parte applications for leave to serve out of jurisdiction)
- Applicants/Plaintiffs: Shee See Kuen and others (for SUM 4); Leong Churn Meng (Liang Junming) and others (for SUM 5)
- Respondent/Defendant: PT Trikomsel Oke Tbk
- Legal Area: Civil Procedure — Service
- Key Issue(s): Whether the Court of Appeal must grant fresh leave to serve out of jurisdiction for transfer applications when the High Court had already granted leave to serve the originating writs out of jurisdiction
- Statutes Referenced: Access to Justice Act; Government Proceedings Act; Supreme Court of Judicature Act; Rules of Court (2014 Rev Ed)
- Rules of Court Provisions Referenced: O 11 rr 1(f), 1(p), 8(1); O 56A r 12(3)(d), O 56A r 12(5); O 57 r 16(1)
- Supreme Court of Judicature Act Provisions Referenced: s 29D(2)(c)(ii) and s 29D(2)(c)(ii) read with O 56A r 12(3)(d)
- Judgment Length: 18 pages, 4,753 words
Summary
In Shee See Kuen and others v PT Trikomsel Oke Tbk ([2022] SGCA 27), the Court of Appeal considered whether it was necessary to obtain fresh leave to serve out of Singapore for transfer applications brought at the appellate level. The transfer applications sought to move pending appeals from the Appellate Division of the High Court to the Court of Appeal. The respondent, an Indonesian company, had already been served in the underlying High Court suits pursuant to leave granted for service out of jurisdiction of the originating writs.
The Court of Appeal held that fresh leave was not required for the transfer applications. The court reasoned that the “originating process” for the purposes of the no-fresh-leave rule in O 11 r 8(1) of the Rules of Court refers to the writs or originating summonses that commenced the proceedings. Where leave to serve the originating writs out of jurisdiction had already been granted and acted upon, subsequent interlocutory applications (even if commenced by originating summons in form) need not be re-served out of jurisdiction with fresh leave.
What Were the Facts of This Case?
The respondent, PT Trikomsel Oke Tbk (“PT Trikomsel”), is an Indonesian company with its address in Indonesia. The applicants were plaintiffs in two High Court suits, HC/S 564/2018 (“Suit 564”) and HC/S 565/2018 (“Suit 565”), in which PT Trikomsel was one of the defendants. In both suits, interlocutory judgment for damages to be assessed was entered against PT Trikomsel. The liability arose, among other things, from fraudulent misrepresentations contained in offering circulars for two tranches of “Senior Fixed Rate Notes” purchased by the applicants.
After liability was established, the proceedings moved to the assessment of damages. By the time the damages assessment hearings took place, the writs of summons against other defendants had either expired without being served or had been set aside. As a result, PT Trikomsel became the only remaining defendant in both suits. At the assessment hearings, the applicants were awarded compensatory damages against PT Trikomsel. However, they were dissatisfied because they did not obtain punitive and aggravated damages.
On the punitive and aggravated damages claims, the High Court Judge rejected those claims on the basis that they were not specifically pleaded. The applicants then appealed to the Court of Appeal against the dismissal of their claims for punitive and aggravated damages. The appeals were, however, in a procedural position that required transfer from the Appellate Division of the High Court to the Court of Appeal under the statutory transfer mechanism.
The transfer applications were filed on 26 January 2022 as OS 2 and OS 3. The applicants sought transfer on the basis 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. The applicants’ objective was to persuade the Court of Appeal to reverse its holding in Noor Azlin that punitive and aggravated damages must be specifically pleaded. Registry directions were issued to PT Trikomsel to file its papers by 7 February 2022, but at a case management conference on 8 February 2022 it emerged that the transfer applications had not been served on PT Trikomsel.
Compounding the problem, the Registry letters dated 27 January 2022 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 was used because it was the address stated in the transfer applications, and they had learnt that PT Trikomsel had changed its registered address to Address 2 only after the proceedings were issued. Importantly for the service analysis, the High Court had previously 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 at Address 2.
What Were the Key Legal Issues?
The Court of Appeal identified two issues. The first was whether the Court of Appeal needed to grant fresh leave to serve out of jurisdiction for the transfer applications when the court below had already granted leave for service out of jurisdiction of the originating process in the underlying suits. This issue turned on the interpretation of O 11 r 8(1) of the Rules of Court, which provides that no leave is required to serve summons, notices or orders out of Singapore in proceedings where leave for service of the originating process has already been granted.
The second issue, contingent on an affirmative answer to the first, was whether the requirements for obtaining leave for service out of jurisdiction were met for the transfer applications. The applicants relied on O 11 r 1(f)(i), O 11 r 1(f)(ii) and/or O 11 r 1(p) of the Rules of Court, which permit service out of Singapore where, broadly, the claim is founded on tort with an act or omission in Singapore, or where damage suffered in Singapore is caused by a tortious act or omission wherever occurring, or where the claim is founded on a cause of action arising in Singapore.
How Did the Court Analyse the Issues?
The court began by clarifying a preliminary procedural point: the applicants were correct to commence the transfer applications by originating summonses. The Court of Appeal noted that O 56A r 12(5) and O 57 r 16(1) of the Rules of Court require that applications to the Court of Appeal under s 29D(2)(c)(ii) of the Supreme Court of Judicature Act be made by originating summons or summons, with the originating summons being the appropriate form in the circumstances described. The court observed that this approach aligned with prior Court of Appeal decisions where transfer applications were also brought by originating summons.
Having confirmed the form, the court addressed the core service question. The starting point was O 11 r 1(1) of the Rules of Court: service of an originating process out of Singapore is permissible only with the leave of the court. The requirements for such leave are set out in O 11 r 2. However, O 11 r 8(1) creates an important exception: leave is not required to serve “any summons, notice or order” issued, given or made in proceedings where leave for service of the originating process has already been granted. The court therefore focused on what constitutes the “originating process” for the purposes of O 11 r 8(1).
The court examined the definitions in O 1 r 4(1) of the Rules of Court. “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 as every summons in a pending cause or matter. The court also referred to commentary in Singapore Court Practice by Jeffrey Pinsler to support the understanding that summonses in pending proceedings denote interlocutory proceedings.
Crucially, the Court of Appeal held that OS 2 and OS 3, although commenced by originating summons in form, were not “originating processes” in substance for the purposes of O 11 r 8(1). Instead, they were interlocutory in nature because they did not commence the underlying dispute between the parties; they were procedural steps within already commenced suits and already commenced appeals. The court derived this approach from the reasoning in Jurong Shipyard Pte Ltd v BNP Paribas [2008] 4 SLR(R) 33, where the court had treated an originating summons as interlocutory in nature after the disposition of the originating summons left something still to be tried between the parties.
Applying that principle, the Court of Appeal reasoned that not all originating summonses are “originating processes” for the service exception. If the originating summons is used to bring an interlocutory application within an ongoing dispute, it should be treated as a summons in a pending cause or matter. On that basis, OS 2 and OS 3 were properly characterised as summonses in pending proceedings, and therefore fell within the O 11 r 8(1) exception. Since leave to serve the writs out of jurisdiction had already been granted in Suit 564 and Suit 565, and since the writs had been served, the applicants did not need fresh leave to serve OS 2 and OS 3 out of jurisdiction.
In reaching this conclusion, the court also implicitly relied on the functional approach to procedural characterisation: what matters is the role the application plays in the litigation, not merely the label “originating summons”. This approach ensured coherence between the exception in O 11 r 8(1) and the practical realities of appellate transfer procedures, which are procedural mechanisms rather than new substantive claims.
Because the court answered Issue 1 in the negative (ie, fresh leave was not required), it did not need to decide Issue 2 in detail. The judgment therefore focused primarily on the interpretation of O 11 r 8(1) and the classification of OS 2 and OS 3 for service purposes.
What Was the Outcome?
The Court of Appeal dismissed the ex parte applications (SUM 4 and SUM 5) seeking leave to serve the transfer applications out of jurisdiction. The practical effect was that the transfer applications could proceed without the need for fresh service leave, given that the underlying writs had already been served pursuant to earlier leave granted by the court below.
In other words, the court’s decision removed a procedural obstacle that could otherwise have delayed the transfer of the appeals to the Court of Appeal. It also clarified that service leave is not automatically required for every subsequent application merely because it is commenced by an originating summons.
Why Does This Case Matter?
This decision is significant for practitioners because it clarifies the scope of the “no fresh leave” rule in O 11 r 8(1) of the Rules of Court. The case demonstrates that courts will look beyond the formal label of an application and assess its substantive procedural character. Where an application is interlocutory in nature within proceedings already commenced with leave for service out of jurisdiction, fresh leave may not be necessary.
For litigators handling cross-border defendants, the judgment provides practical guidance on how to structure and serve procedural steps during the appellate lifecycle. It reduces the risk of technical non-compliance where earlier leave has already been granted for the originating process. This is particularly relevant in appellate transfer contexts under the Supreme Court of Judicature Act, where procedural steps may be brought by originating summons even though they do not restart the underlying dispute.
From a precedent perspective, the case also reinforces the functional approach to procedural classification, drawing on Jurong Shipyard. It aligns with the broader principle that procedural rules should be applied in a manner that reflects litigation realities and avoids unnecessary duplication of steps that do not advance the substantive adjudication.
Legislation Referenced
- Access to Justice Act
- Access to Justice Act 1999
- Government Proceedings Act
- Supreme Court of Judicature Act (including s 29D(2)(c)(ii))
- Rules of Court (2014 Rev Ed), including:
- O 1 r 4(1) (definitions of “originating process”, “originating summons”, “summons”)
- O 11 r 1(1) and O 11 r 1(f)(i), O 11 r 1(f)(ii), O 11 r 1(p)
- O 11 r 2 (requirements for leave to serve out of jurisdiction)
- O 11 r 8(1) (no fresh leave for summons/notice/order where leave for originating process already granted)
- O 56A r 12(3)(d) and O 56A r 12(5) (transfer of appeal applications)
- O 57 r 16(1) (form of applications to the Court of Appeal)
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
- [2022] SGCA 27 — Shee See Kuen and others v PT Trikomsel Oke Tbk and another matter
- [2022] SGCA 27 — (as referenced within the judgment’s own citation context)
- [2008] 4 SLR(R) 33 — Jurong Shipyard Pte Ltd v BNP Paribas
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.