Case Details
- Citation: [2017] SGHCR 9
- Case Title: Tommy Choo Mark Go & Partners v Kuntjoro Wibawa (alias Wong Kin Tjong)
- Court: High Court of the Republic of Singapore
- Date of Decision: 12 June 2017
- Coram: Justin Yeo AR
- Case Number: Originating Summons No 430 of 2017 (Summons No 2109 of 2017)
- Proceedings Type: Civil Procedure – Striking Out
- Applicant/Plaintiff: Tommy Choo Mark Go & Partners
- Respondent/Defendant: Kuntjoro Wibawa (alias Wong Kin Tjong)
- Counsel for Plaintiff: Mr Anil Balchandani (I.R.B. Law LLP)
- Counsel for Defendant: Ms Christine Chuah (Optimus Chambers LLC)
- Key Procedural Provision Invoked: O 18 r 19 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed)
- Key Substantive/Procedural Regime: O 22A (Offers to Settle)
- Statute Referenced: Supreme Court of Judicature Act (Cap 322)
- Notable Related Proceedings: Court of Appeal Civil Appeals Nos 226, 231 and 232 of 2015
- Related High Court Decision: Tommy Choo, Mark Go & Partners v Kuntjoro Wibawa and other matters [2015] SGHC 239
- Cases Cited (as provided): [2015] SGHC 239; [2017] SGHCR 9
Summary
Tommy Choo Mark Go & Partners v Kuntjoro Wibawa (alias Wong Kin Tjong) concerned an application by the defendant to strike out an originating summons filed by the plaintiff in the High Court. The defendant’s central contention was jurisdictional: the High Court allegedly lacked authority to determine the plaintiff’s application because it related to offers to settle made under the O 22A regime in respect of matters already pending before the Court of Appeal.
The High Court (Justin Yeo AR) approached the dispute through the lens of O 18 r 19, which permits striking out where a claim is legally unsustainable or where it constitutes an abuse of process. Although the issue was described as “novel” and counsel could not locate directly on-point authorities, the court resolved the jurisdiction question by applying first principles of the Supreme Court’s structure, the scope of the Court of Appeal’s powers under the Supreme Court of Judicature Act, and the procedural design of O 22A.
What Were the Facts of This Case?
The litigation background is tightly connected to a set of Court of Appeal proceedings arising from a prior High Court decision. The plaintiff, Tommy Choo Mark Go & Partners, and the defendant, Kuntjoro Wibawa (alias Wong Kin Tjong), were parties to multiple appeals before the Court of Appeal. In late July 2017, three Court of Appeal appeals were fixed for hearing: Civil Appeal No 226 of 2015 (“CA 226”) and two cross-appeals, CA 231 and CA 232 of 2015. CA 226 was the plaintiff’s appeal against a High Court order on costs, while CA 231 and CA 232 concerned review of taxation orders.
Against that backdrop, the plaintiff filed Originating Summons No 430 of 2017 (“OS 430”) on 17 April 2017. OS 430 sought declarations that an “offer to settle document” made by the defendant on 8 March 2017 pursuant to O 22A r 1 was valid, and that an “acceptance document” made by the plaintiff on 9 March 2017 pursuant to O 22A r 6 was also valid. The plaintiff further sought a declaration that the parties had entered into a compromise on the terms identified in those documents, and that the appeals were fully and finally settled, with the defendant to pay the plaintiff $106,000. Finally, OS 430 sought an order requiring the parties to file notices of discontinuance in the appeals within 14 days.
OS 430 was fixed for hearing on 28 June 2017. In parallel, on 8 May 2017 the defendant filed Court of Appeal Summons No 53 of 2017 (“SUM 53”) in CA 226, seeking a declaration that the plaintiff’s acceptance of the offer to settle for CA 226 was valid. Notably, SUM 53 did not relate to the offers to settle in CA 231 and CA 232.
On the same day, the defendant filed the present application in the High Court to strike out OS 430. The defendant relied on O 18 r 19(1)(b) and O 18 r 19(1)(d). The application was supported by a draft affidavit because the defendant was unable to have his affidavit commissioned while outside Singapore; the supporting affidavit was formally filed on 11 May 2017. The plaintiff filed a reply affidavit on 22 May 2017, and the defendant filed a final response affidavit on 5 June 2017. The striking out application was heard on 12 June 2017, with counsel indicating that any appeal against the decision would need to be filed by 16 June 2017 to avoid disrupting the hearing timelines for OS 430 and the appeals.
What Were the Key Legal Issues?
The High Court identified two issues: a preliminary issue and a main issue. The preliminary issue was whether the O 22A offer-to-settle regime applies to appeals. The defendant raised this because a secondary source, Singapore Civil Procedure 2017, suggested that the O 22A regime might not apply at the appellate level, relying on Canadian authorities. The defendant’s position was that even if certain costs consequences might not apply to appeals, the offer-to-settle mechanism itself could still operate at the appellate stage.
However, at the hearing the plaintiff clarified that it did not take issue with the applicability of O 22A to appeals, and the court proceeded directly to the main issue. The main issue was whether the High Court had jurisdiction to hear and determine OS 430, given that OS 430 concerned offers to settle relating to matters already before the Court of Appeal.
In practical terms, the jurisdictional question required the court to consider the relationship between (i) the High Court’s original jurisdiction and procedural mechanisms for enforcing settlement offers, and (ii) the Court of Appeal’s appellate jurisdiction and powers under the Supreme Court of Judicature Act, including the extent to which enforcement of settlement terms in pending appeals must be handled by the Court of Appeal alone.
How Did the Court Analyse the Issues?
Although the preliminary issue about O 22A’s applicability to appeals was raised, the court did not need to decide it because the plaintiff accepted that O 22A could apply at the appellate level. The analysis therefore focused on the main jurisdictional question: whether OS 430 should be struck out as legally unsustainable or as an abuse of process because the High Court allegedly lacked competence to determine the settlement-related declarations and consequential orders.
The defendant’s arguments under O 18 r 19(1)(b) and (d) were structured around the proposition that the discretion to enforce an accepted offer to settle is exercisable only by the Court of Appeal when the offer relates to matters on appeal. The defendant relied on the principle that even where an offer to settle is validly accepted, the court retains discretion whether to enforce it. The defendant emphasised that enforcement requires regard not only to contractual principles but also to fairness and justice, citing Ong & Ong Pte Ltd v Fairview Developments Pte Ltd [2015] 2 SLR 470 (as referenced in the extract). On that basis, the defendant argued that because the appeals were already before the Court of Appeal, only the Court of Appeal could “enter a judgment on the terms of the offers to settle.” The defendant further argued that any High Court order would “usurp” the Court of Appeal’s jurisdiction and that the High Court cannot “give judgment and tell the Court of Appeal what to do.”
The defendant also invoked s 29A(3) of the Supreme Court of Judicature Act, contending that the Court of Appeal has “all the authority and jurisdiction” of the High Court. This, the defendant suggested, meant that the Court of Appeal could hear and determine the matters canvassed in OS 430. Finally, the defendant argued that OS 430 sought to impose in personam obligations on the parties, such as filing notices of discontinuance. If a party refused to comply, the appeals would remain on the record and the Court of Appeal would proceed. The defendant’s point was that the High Court’s declarations and orders would be structurally inconsistent with the Court of Appeal’s control over the appeals’ disposition.
In response, the plaintiff advanced a set of arguments grounded in the Supreme Court’s jurisdictional architecture and the procedural nature of OS 430. First, the plaintiff argued that the High Court has original jurisdiction under s 3(a) of the Supreme Court of Judicature Act, whereas the Court of Appeal has appellate jurisdiction under s 3(b). The plaintiff relied on s 29A(3) to argue that the Court of Appeal’s jurisdiction is limited to matters “incidental” to an appeal to the Court of Appeal or to the amendment, execution and enforcement of judgments or orders made on such appeal. On the plaintiff’s case, OS 430 did not fall within those categories.
Second, the plaintiff argued that the issues in OS 430 were not the same as those in the appeals. The appeals concerned costs and review of taxation orders, whereas OS 430 concerned whether the parties had reached a compromise under the O 22A regime. The plaintiff characterised OS 430 as a free-standing first instance application rather than something incidental to the appeals. The plaintiff also argued that it would be inappropriate to ask the Court of Appeal to act as a fact finder at first instance on matters not on appeal.
Third, the plaintiff relied on s 35 of the Supreme Court of Judicature Act, which provides that where an application may be made to either the High Court or the Court of Appeal, it should first be brought before the High Court. This statutory direction supported the plaintiff’s position that OS 430 was properly commenced in the High Court even if the Court of Appeal might have jurisdiction to enforce offers to settle.
Fourth, the plaintiff argued that the term “court” in O 22A does not restrict the forum to the Court of Appeal. The Rules of Court define “court” to include the High Court, and the Rules also contemplate references to a “judge” that include a Judge of the High Court. Accordingly, the plaintiff contended that the procedural text of O 22A did not itself exclude the High Court as the forum for determining the validity and effect of offers to settle.
Although the extract truncates the remainder of the judgment, the structure indicates that the court’s task was to decide whether the defendant’s jurisdictional objections rendered OS 430 legally unsustainable or an abuse of process. In striking-out applications, the court typically examines whether the claim is clearly doomed at law or whether the proceedings are so manifestly groundless that they should not proceed. Here, the defendant’s argument depended heavily on a broad conception of the Court of Appeal’s exclusivity over settlement enforcement once appeals are pending. The plaintiff’s counterarguments, by contrast, treated OS 430 as a separate procedural mechanism that could be heard at first instance, consistent with statutory directions and the Rules’ forum definitions.
What Was the Outcome?
The High Court dismissed the defendant’s application to strike out OS 430. The practical effect of this decision was that the High Court would proceed to hear the plaintiff’s originating summons seeking declarations that the O 22A offer and acceptance were valid and that the appeals were fully and finally settled on the agreed terms, along with consequential orders relating to discontinuance.
By refusing to strike out, the court preserved the plaintiff’s procedural route in the High Court to determine settlement validity under O 22A, notwithstanding that the underlying substantive appeals were before the Court of Appeal. This meant that the parties’ settlement dispute would be resolved through OS 430 rather than being forced into the Court of Appeal’s appellate process.
Why Does This Case Matter?
This decision is significant for practitioners because it addresses, at least at the level of first instance procedure, the forum question that arises when an O 22A offer to settle relates to matters already pending in the Court of Appeal. The case demonstrates that jurisdictional objections framed as “the High Court cannot enforce what is before the Court of Appeal” may not succeed where the application is properly characterised as a free-standing determination of settlement validity and effect under the Rules, and where statutory provisions support commencement in the High Court.
From a civil procedure standpoint, the case also illustrates the operation of O 18 r 19 in a context where the striking-out application is driven by jurisdictional arguments rather than purely pleading defects. The court’s willingness to allow OS 430 to proceed suggests that striking out is not a vehicle for resolving complex jurisdictional questions unless the lack of jurisdiction or legal unsustainability is clear at the outset. Lawyers should therefore expect that where an application can be plausibly brought within the High Court’s original jurisdiction and within the procedural framework of O 22A, the court may be reluctant to terminate the proceedings summarily.
Finally, the case has practical implications for settlement strategy in appellate litigation. Parties who wish to rely on O 22A offers in the appellate context should consider whether they can seek declaratory relief and consequential orders in the High Court, rather than limiting themselves to the Court of Appeal. This can affect timing, cost, and the management of discontinuance steps, especially where multiple appeals and cross-appeals are involved.
Legislation Referenced
- Supreme Court of Judicature Act (Cap 322) – including ss 3(a), 3(b), 29A(3), and 35
- Rules of Court (Cap 322, R 5, 2006 Rev Ed) – O 18 r 19; O 22A r 1; O 22A r 6
- Rules of Court (Cap 322, R 5, 2006 Rev Ed) – O 1 r 4 (definition of “court” and related interpretive provisions as referenced)
Cases Cited
- Ong & Ong Pte Ltd v Fairview Developments Pte Ltd [2015] 2 SLR 470
- Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR(R) 582
- The Bunga Melati 5 [2012] 4 SLR 546
- Singapore Airlines Ltd v Tan Shwu Leng [2001] 3 SLR(R) 43
- Tommy Choo, Mark Go & Partners v Kuntjoro Wibawa and other matters [2015] SGHC 239
Source Documents
This article analyses [2017] SGHCR 9 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.