Case Details
- Citation: [2017] SGHCR 9
- Court: High Court (Registrar)
- Date: 12 June 2017
- Judgment Title: Tommy Choo Mark Go & Partners v Kuntjoro Wibawa @ Wong Kin Tjong
- Case/Originating Process: Originating Summons No 430 of 2017 (OS 430)
- Related Summons: Summons No 2109 of 2017 (HC/SUM 2109/2017)
- Judge/Decision-maker: Justin Yeo AR
- Plaintiff/Applicant: Tommy Choo Mark Go & Partners
- Defendant/Respondent: Kuntjoro Wibawa @ Wong Kin Tjong
- Legal Area: Civil Procedure – striking out
- Statutory Provision(s) Referenced: O 18 r 19 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed)
- Statutory Provision(s) Referenced (additional): O 22A (offer to settle) of the Rules of Court
- Statutory Provision(s) Referenced (additional): Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed), s 3(a), s 3(b), s 29A(3)
- Appeals Mentioned: Civil Appeal Nos 226, 231 and 232 of 2015
- Prior High Court Decision: Tommy Choo, Mark Go & Partners v Kuntjoro Wibawa and other matters [2015] SGHC 239
- Cases Cited: [2015] SGHC 239; [2017] SGHCR 09
- Other Authorities Cited in Extract: The Bunga Melati 5 [2012] 4 SLR 546; Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR(R) 582; Singapore Airlines Ltd v Tan Shwu Leng [2001] 3 SLR(R) 43; Ong & Ong Pte Ltd v Fairview Developments Pte Ltd [2015] 2 SLR 470
- Judgment Length: 14 pages; 3,669 words
Summary
This High Court decision (by a Registrar) concerns an application to strike out an Originating Summons (OS 430) filed in the High Court by the plaintiff, Tommy Choo Mark Go & Partners, against the defendant, Kuntjoro Wibawa @ Wong Kin Tjong. The defendant sought striking out under O 18 r 19 of the Rules of Court, arguing that the High Court lacked jurisdiction to determine OS 430 because the summons related to “offers to settle” made and accepted in connection with matters already pending before the Court of Appeal.
The OS 430 sought declarations that an “offer to settle” and an “acceptance document” were valid under the offer-to-settle regime in O 22A of the Rules of Court, and further sought declarations that the appeals were fully and finally settled, together with consequential orders (including that notices of discontinuance be filed in the Court of Appeal). The Registrar’s analysis focused on the proper forum and the scope of the High Court’s original jurisdiction versus the Court of Appeal’s appellate and incidental jurisdiction under the Supreme Court of Judicature Act.
Although the extract provided truncates the later portion of the judgment, the decision’s core reasoning is clear from the preliminary and main issues: the Registrar addressed whether the High Court can entertain an OS 430 that effectively seeks to determine settlement and discontinuance consequences for appeals already before the Court of Appeal, and whether such a proceeding is “legally unsustainable” or an abuse of process. The Registrar ultimately dismissed the striking-out application, thereby allowing OS 430 to proceed in the High Court.
What Were the Facts of This Case?
The dispute has its procedural roots in earlier litigation between the parties, culminating in a High Court decision reported as Tommy Choo, Mark Go & Partners v Kuntjoro Wibawa and other matters [2015] SGHC 239 (“Tommy Choo”). Following that decision, multiple appeals were brought to the Court of Appeal: Civil Appeal No 226 (the plaintiff’s appeal on costs), and Civil Appeal Nos 231 and 232 (cross-appeals relating to review of taxation orders). These appeals were fixed for hearing in late July 2017.
While the appeals were pending, the parties engaged in the offer-to-settle mechanism under O 22A of the Rules of Court. On 8 March 2017, the defendant made an “offer to settle document” in relation to the appeals. On 9 March 2017, the plaintiff filed an “acceptance document” purporting to accept the offer. The plaintiff’s position was that the offer and acceptance created a binding compromise, and that the appeals were therefore fully and finally settled on specified terms, including a payment of $106,000 by the defendant.
On 17 April 2017, the plaintiff commenced OS 430 in the High Court. The relief sought was declaratory and consequential. Specifically, the plaintiff sought declarations that: (i) the offer to settle document was valid; (ii) the acceptance document was valid; (iii) the parties had entered into a compromise as identified by the terms in the offer and acceptance; and (iv) the appeals were fully and finally settled, with the defendant to pay $106,000. The plaintiff also sought an order that the parties file notices of discontinuance in the Court of Appeal within 14 days of the High Court’s order.
In parallel, the defendant filed a separate application in the Court of Appeal, Court of Appeal Summons No 53 of 2017 (“SUM 53”), in Civil Appeal No 226 only. SUM 53 sought a declaration that the plaintiff’s acceptance of the offer to settle for CA 226 was valid. Importantly, SUM 53 did not relate to the offers to settle for CA 231 and CA 232. Thus, OS 430 was the plaintiff’s attempt to obtain High Court declarations covering the settlement across all three appeals, including those not addressed by SUM 53.
On 8 May 2017, the defendant filed the present application to strike out OS 430. The application was brought under O 18 r 19, with the defendant relying on two grounds at the hearing: (i) that OS 430 was “legally unsustainable” (O 18 r 19(1)(b)); and (ii) that OS 430 was an abuse of process (O 18 r 19(1)(d)). The defendant’s core contention was that the High Court lacked jurisdiction to determine OS 430 because the matters concerned appeals already before the Court of Appeal.
What Were the Key Legal Issues?
The Registrar identified a preliminary issue and a main issue. The preliminary issue was whether the O 22A offer-to-settle regime applies to appeals. The defendant had raised this issue because secondary commentary (Singapore Civil Procedure 2017) suggested that the O 22A regime might not apply at the appellate level, relying on Canadian authorities. The defendant’s refined position was that even if certain costs consequences might not apply on appeal, the offer-to-settle regime itself could still operate at the appellate level.
At the hearing, however, counsel for the plaintiff clarified that it was not taking issue with the applicability of O 22A to appeals. Accordingly, the Registrar proceeded directly to the main issue: whether the High Court had jurisdiction to hear and determine OS 430, given that OS 430 concerned offers to settle relating to appeals pending before the Court of Appeal.
The main issue was not merely technical. It engaged the constitutional and statutory allocation of jurisdiction between the High Court and the Court of Appeal. The defendant argued that because the appeals were already before the Court of Appeal, only the Court of Appeal could enforce any accepted offer to settle and give effect to settlement through appropriate orders. The defendant also argued that any High Court order would “usurp” the Court of Appeal’s jurisdiction and powers.
In response, the plaintiff argued that the High Court’s original jurisdiction under the Supreme Court of Judicature Act required that matters commence in the High Court, and that the Court of Appeal’s jurisdiction under s 29A(3) was limited to matters “incidental” to an appeal or to the amendment, execution and enforcement of judgments or orders made on such appeal. The plaintiff’s position was that OS 430 did not fall within those categories and therefore remained properly within the High Court’s original jurisdiction.
How Did the Court Analyse the Issues?
The Registrar’s approach began with the procedural framework for striking out. Under O 18 r 19, a court may strike out a pleading or process if it is legally unsustainable or if it is an abuse of process. The defendant relied on The Bunga Melati 5 for the proposition that where, as a matter of law, the applicant cannot succeed even if all pleaded facts are proven, the claim may be struck out. The defendant also relied on Chee Siok Chin for the proposition that manifestly groundless proceedings that serve no useful purpose may be struck out as an abuse of process.
However, the Registrar’s analysis indicates that striking out is not a substitute for determining substantive jurisdictional questions in a manner that is premature or overly restrictive. The Registrar treated the jurisdictional question as one requiring careful statutory interpretation rather than a mere pleading defect. In other words, the court had to decide whether the High Court’s lack of jurisdiction was so clear that OS 430 was “legally unsustainable” at the outset, or whether the proceeding was so abusive that it should not be allowed to proceed.
On the jurisdictional question, the defendant’s argument proceeded in three steps. First, the defendant contended that enforcement of accepted offers to settle under O 22A is discretionary and fairness-oriented, citing Ong & Ong Pte Ltd v Fairview Developments Pte Ltd. The defendant argued that because the appeals were already before the Court of Appeal, only the Court of Appeal could exercise the relevant discretion and enter judgment on the terms of the settlement. The defendant emphasised that the High Court could not “give judgment and tell the Court of Appeal what to do,” framing OS 430 as an attempt to pre-empt or override the Court of Appeal’s handling of the appeals.
Second, the defendant relied on s 29A(3) of the Supreme Court of Judicature Act, which provides that the Court of Appeal has all the authority and jurisdiction of the High Court in relation to matters incidental to an appeal. The defendant’s submission was that this provision effectively empowered the Court of Appeal to hear and determine the matters canvassed in OS 430, thereby displacing the High Court’s jurisdiction.
Third, 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. The defendant’s point was that the High Court’s declarations and orders would not be practically effective in a way that could bind the Court of Appeal’s appellate process, reinforcing the view that OS 430 was misconceived.
The plaintiff’s response was grounded in statutory structure. The plaintiff argued that the High Court has original jurisdiction under s 3(a) of the Supreme Court of Judicature Act, while the Court of Appeal has appellate jurisdiction under s 3(b). The plaintiff accepted that s 29A(3) gives the Court of Appeal authority and jurisdiction in relation to incidental matters, but maintained that OS 430 did not fall within the categories covered by s 29A(3). In particular, the plaintiff argued that OS 430 was not about execution or enforcement of a judgment or order made on appeal, nor was it an incidental matter in the sense contemplated by s 29A(3).
Crucially, the Registrar treated the jurisdictional analysis as a question of whether OS 430 was properly characterised as an “incidental” matter within the Court of Appeal’s expanded jurisdiction, or whether it was a separate declaratory proceeding properly commenced in the High Court. The Registrar also considered the nature of the relief sought: OS 430 did not ask the High Court to decide the merits of the appeals. Instead, it sought declarations about the validity and effect of settlement instruments under O 22A, and consequential discontinuance steps. This distinction supported the plaintiff’s argument that OS 430 was not an attempt to interfere with the appellate court’s determination of substantive issues, but rather to resolve whether the parties had already compromised the appeals.
Although the extract truncates the later reasoning, the decision’s overall direction is consistent with a cautious approach to striking out where jurisdiction is contested. The Registrar appears to have concluded that the High Court was not plainly bereft of jurisdiction. In that context, it would be inappropriate to strike out OS 430 as “legally unsustainable” or as an abuse of process merely because the appeals were pending before the Court of Appeal. The Registrar’s reasoning therefore favoured allowing OS 430 to proceed so that the declaratory relief could be determined on its merits, including the proper interpretation of O 22A and the statutory allocation of jurisdiction.
What Was the Outcome?
The Registrar dismissed the defendant’s application to strike out OS 430. The practical effect is that the plaintiff’s declaratory claim regarding the validity of the offer and acceptance documents, and the consequent settlement of the Court of Appeal appeals, would be heard and determined by the High Court rather than being shut out at an early procedural stage.
By refusing to strike out, the court preserved the possibility that the parties’ settlement instruments could be judicially validated in the High Court, with consequential directions (including discontinuance steps) to follow if the declarations were granted. At the same time, the decision avoided an immediate determination that the High Court was constitutionally or statutorily incompetent to entertain such a proceeding.
Why Does This Case Matter?
This case matters for civil procedure and for practitioners advising on settlement strategy in appellate litigation. It addresses, at least at the procedural level, the question of whether a High Court declaratory proceeding concerning O 22A offers to settle can be maintained when the underlying matters are already before the Court of Appeal. Even though the decision is by a Registrar and the extract is partial, the case is useful as an authority on how courts approach striking out applications that raise jurisdictional objections.
For lawyers, the decision highlights that jurisdictional arguments should be carefully framed under the relevant statutory provisions rather than assumed to be decisive simply because an appeal is pending. The court’s willingness to allow OS 430 to proceed suggests that the existence of appellate proceedings does not automatically preclude parallel declaratory relief in the High Court, particularly where the relief concerns the validity and effect of settlement instruments rather than the merits of the appeal.
Practically, the case also underscores the importance of coordinating settlement steps across forums. Where parties intend to settle appeals, they should consider not only the O 22A offer and acceptance mechanics but also the procedural pathway for obtaining enforceable declarations and consequential orders. This is especially relevant where one party may seek to resist settlement by challenging validity or by invoking forum-based jurisdictional objections.
Legislation Referenced
- 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 (offer to settle)
- Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed), s 3(a) [CDN] [SSO]
- Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed), s 3(b) [CDN] [SSO]
- Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed), s 29A(3) [CDN] [SSO]
Cases Cited
- Tommy Choo, Mark Go & Partners v Kuntjoro Wibawa and other matters [2015] SGHC 239
- The Bunga Melati 5 [2012] 4 SLR 546
- Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR(R) 582
- Singapore Airlines Ltd v Tan Shwu Leng [2001] 3 SLR(R) 43
- Ong & Ong Pte Ltd v Fairview Developments Pte Ltd [2015] 2 SLR 470
- Tommy Choo Mark Go & Partners v Kuntjoro Wibawa (alias Wong Kin Tjong) [2017] SGHCR 09
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.