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)
- Proceeding Type: Application to strike out an originating summons
- Legal Area: Civil Procedure — Striking Out
- Plaintiff/Applicant: Tommy Choo Mark Go & Partners
- Defendant/Respondent: 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)
- Related Court of Appeal Proceedings: Civil Appeal 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
- Judgment Length: 6 pages, 3,346 words
Summary
Tommy Choo Mark Go & Partners v Kuntjoro Wibawa (alias Wong Kin Tjong) [2017] SGHCR 9 concerned a procedural challenge to an originating summons (OS 430) brought in the High Court in the context of pending Court of Appeal proceedings. The defendant sought to strike out OS 430 on the basis that the High Court lacked jurisdiction to hear and determine the application, which related to the validity and enforcement of “offers to settle” made under the O 22A regime in relation to matters already before the Court of Appeal.
The High Court (Justin Yeo AR) addressed two issues: first, whether the O 22A offer-to-settle regime applies at the appellate level; and second, whether the High Court has jurisdiction to determine an OS 430 seeking declarations that the parties had entered into a compromise and that the appeals were fully and finally settled, including consequential directions such as filing notices of discontinuance. While the extract provided does not include the final dispositive paragraphs, the court’s reasoning on jurisdiction and the structure of the Supreme Court’s appellate and incidental powers is central to understanding the procedural posture and the proper forum for O 22A-related enforcement when an appeal is already pending.
What Were the Facts of This Case?
The dispute arose from a set of proceedings that had already progressed to the Court of Appeal. The plaintiff, Tommy Choo Mark Go & Partners, was the respondent in Civil Appeal No 226 of 2015 (“CA 226”), and the appellant/respondent in the cross-appeals CA 231 and CA 232 of 2015. These appeals were fixed for hearing in late July 2017. The High Court’s earlier decision in Tommy Choo, Mark Go & Partners v Kuntjoro Wibawa and other matters [2015] SGHC 239 (“Tommy Choo”) had dealt with costs and related taxation review matters, which then became the subject of the Court of Appeal proceedings.
In April 2017, while the appeals were pending, the plaintiff and defendant engaged in the O 22A offer-to-settle process. On 17 April 2017, the plaintiff filed OS 430 in the High Court. OS 430 sought multiple declarations: that an “offer to settle document” dated 8 March 2017 made by the defendant pursuant to O 22A r 1 was valid; that an “acceptance document” dated 9 March 2017 made by the plaintiff pursuant to O 22A r 6 was valid; and that the parties had entered into a compromise on the terms identified in those documents. The plaintiff further sought a declaration that the appeals were fully and finally settled and that the defendant was to pay the plaintiff $106,000, together with an order that the parties file notices of discontinuance within 14 days.
Notably, the offer-to-settle documents were tied to the appeals, but not all appeals were necessarily covered by the same offer. The defendant had earlier filed Court of Appeal Summons No 53 of 2017 (“SUM 53”) on 8 May 2017 in CA 226, seeking a declaration that the plaintiff’s acceptance of the offer to settle for CA 226 was valid. SUM 53 did not relate to the offers to settle in CA 231 and CA 232. OS 430, by contrast, was framed to address the settlement position across the appeals fixed for hearing.
On 12 June 2017, the defendant applied to strike out OS 430. The application was brought under O 18 r 19 of the Rules of Court, which permits striking out where a claim is legally unsustainable or where the proceedings are an abuse of process. At the hearing, the defendant proceeded on two grounds: (i) that OS 430 was “legally unsustainable” because, even if the defendant’s facts were proven, the plaintiff would not be entitled to the remedy sought; and (ii) that bringing OS 430 was an abuse of process because it was “manifestly groundless or without foundation” and served no useful purpose. The defendant’s supporting affidavit was filed after the defendant was unable to commission it while outside Singapore, and the plaintiff filed reply and final response affidavits before the hearing.
What Were the Key Legal Issues?
The first legal issue was preliminary: whether the O 22A offer-to-settle regime applies to appeals. The defendant’s counsel had raised this because a commentary in Singapore Civil Procedure 2017 suggested that the O 22A regime might not apply to appeals, drawing on Canadian authorities. Counsel for the defendant argued that, even if certain costs consequences under O 22A r 9 might not apply at the appellate level, the substantive offer-to-settle mechanism could still apply, with the costs consequences remaining within the court’s discretion.
The second, and main, issue was jurisdictional: whether the High Court has the necessary jurisdiction to hear and determine OS 430, given that OS 430 concerned offers to settle relating to matters already before the Court of Appeal. This issue required the court to consider the relationship between the High Court’s original jurisdiction and the Court of Appeal’s appellate jurisdiction, as well as the statutory framework governing the Court of Appeal’s powers to deal with matters incidental to an appeal.
How Did the Court Analyse the Issues?
On the preliminary issue, the court proceeded on the basis that the parties did not ultimately dispute the applicability of O 22A to appeals. Counsel for the plaintiff clarified that he was not taking issue with the applicability of the O 22A regime to appeals and asked the court to focus on the main jurisdictional question. This narrowing of the dispute is important: it indicates that the real controversy was not whether offers to settle can be made and accepted in an appellate context, but rather which court should determine the consequences of such offers when the underlying matters are already before the Court of Appeal.
On the main issue, the defendant’s argument was structured around the proposition that the High Court could not enforce or give effect to accepted offers to settle in respect of matters that were already before the Court of Appeal. The defendant relied on the principle that even where an offer to settle has been validly accepted, enforcement is not automatic; the court retains a discretion. The defendant cited Ong & Ong Pte Ltd v Fairview Developments Pte Ltd [2015] 2 SLR 470 for the proposition that, in enforcing an accepted offer to settle, the court should consider not only contractual principles but also fairness and justice. From this, the defendant reasoned that because the appeals were already before the Court of Appeal, only the Court of Appeal could enter judgment on the terms of the offers to settle, and the High Court would be “usurping” the Court of Appeal’s jurisdiction by declaring the appeals settled and ordering discontinuance.
The defendant also invoked s 29A(3) of the Supreme Court of Judicature Act, arguing that the Court of Appeal has “all the authority and jurisdiction” of the High Court for matters incidental to an appeal to the Court of Appeal, or for the amendment, execution and enforcement of any judgment or order made on such appeal. The defendant’s submission was that OS 430 fell within the Court of Appeal’s incidental jurisdiction, and therefore the Court of Appeal could hear and determine the matters canvassed in OS 430. In addition, the defendant argued that OS 430 sought to impose in personam obligations (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. This, the defendant suggested, underscored that the Court of Appeal should be the forum for determining whether the appeals were settled and what should happen procedurally in the appellate record.
In response, the plaintiff advanced a principled “forum” argument grounded in the Supreme Court’s jurisdictional architecture. First, the plaintiff relied on s 3(a) of the SCJA to assert that the High Court has original jurisdiction and that matters should commence in the High Court, whereas the Court of Appeal has appellate jurisdiction under s 3(b). The plaintiff accepted that s 29A(3) confers incidental powers on the Court of Appeal, but argued that OS 430 did not fall within the categories covered by s 29A(3). In the plaintiff’s view, OS 430 was not merely incidental to the appeals; it was a free-standing application concerning whether the parties had reached a compromise under the O 22A regime, and it required determination of facts not on appeal.
Second, the plaintiff emphasised the difference between the issues in the appeals and the issues in OS 430. The appeals concerned (i) costs consequences and (ii) review of taxation orders. OS 430, by contrast, concerned the validity of the offer and acceptance documents and whether a compromise had been reached. The plaintiff argued that these issues were not the same as those before the Court of Appeal, and 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. This argument reflects a common jurisdictional concern: appellate courts are generally structured to review decisions and issues already raised, rather than to conduct primary fact-finding on new disputes.
Third, the plaintiff relied on s 35 of the SCJA, which provides that where an application may be made to either the High Court or the Court of Appeal, it should first be brought in the High Court. This statutory “starting point” supports the plaintiff’s position that OS 430 was properly commenced in the High Court even if the Court of Appeal might have power to enforce the offers to settle. The plaintiff’s position was that the existence of potential appellate enforcement does not necessarily displace the default procedural route mandated by s 35.
Fourth, the plaintiff argued that the O 22A regime itself does not confine the relevant “court” to the Court of Appeal. The definition of “court” in the Rules of Court includes the High Court, and the reference to “judge” includes a Judge of the High Court. Therefore, the plaintiff submitted that the text of O 22A does not support the defendant’s contention that only the Court of Appeal can determine O 22A-related issues in an appellate context.
Finally, the plaintiff’s submissions (as reflected in the extract) included an assertion that it was improper to suggest parallel proceedings or to treat the High Court application as an attempt to interfere with the Court of Appeal’s role. Although the extract truncates the remainder of the judgment, the thrust of the analysis is clear: the court had to reconcile (i) the discretionary nature of O 22A enforcement and the Court of Appeal’s appellate role, with (ii) the High Court’s original jurisdiction and the statutory guidance on where applications should be commenced.
What Was the Outcome?
The provided extract does not include the final orders or the court’s ultimate determination on the strike-out application. However, the structure of the decision indicates that the High Court proceeded to decide the jurisdictional question under O 18 r 19(1)(b) and (d), after clarifying that O 22A applies to appeals and focusing on whether the High Court could properly entertain OS 430.
For practitioners, the practical effect of the outcome would have been significant: if OS 430 were struck out, the plaintiff would have to pursue the settlement enforcement route through the Court of Appeal (or another procedurally appropriate mechanism). If OS 430 were allowed to proceed, the High Court would be able to make declarations and consequential orders (including directions to file notices of discontinuance), potentially leading to the appeals being treated as settled without further appellate adjudication.
Why Does This Case Matter?
This case matters because it addresses a recurring procedural problem in Singapore litigation: how the O 22A offer-to-settle regime operates when the underlying dispute is already at the appellate stage. While the court accepted (at least for purposes of the hearing) that O 22A can apply to appeals, the jurisdictional question remains crucial. The decision highlights that “applicability” of a procedural regime is distinct from “forum” and “power” to grant the remedies sought.
From a precedent and practice perspective, the case is useful for lawyers who need to decide where to bring an O 22A enforcement application when an appeal is pending. The arguments canvassed—discretionary enforcement, incidental jurisdiction under s 29A(3), the original jurisdiction of the High Court under s 3(a), and the “first instance” rule in s 35—provide a structured framework for analysing jurisdiction in future disputes. Even where the final holding is not reproduced in the extract, the reasoning process itself is instructive for drafting and for anticipating jurisdictional objections.
Additionally, the case illustrates how striking out under O 18 r 19 can be used to attack not the merits of an offer-to-settle dispute, but the court’s competence to grant the relief sought. This is particularly relevant where parties seek declaratory relief and consequential procedural orders that may affect the appellate record. Practitioners should therefore carefully consider the interplay between settlement enforcement and appellate case management, and ensure that the chosen forum aligns with the statutory jurisdictional scheme.
Legislation Referenced
- Supreme Court of Judicature Act (Cap 322) — s 3(a), s 3(b), s 29A(3), s 35
- Rules of Court (Cap 322, R 5, 2006 Rev Ed) — O 18 r 19
- Rules of Court (Cap 322, R 5, 2006 Rev Ed) — O 22A r 1 and O 22A r 6 (offers to settle and acceptance)
- Rules of Court (Cap 322, R 5, 2006 Rev Ed) — O 22A r 8 and O 22A r 9 (as discussed in submissions)
- Rules of Court (Cap 322, R 5, 2006 Rev Ed) — O 1 r 4(1) and O 1 r 4(2) (definitions of “judge” and “court”)
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
- [2017] SGHCR 9 (the present decision)
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.