Case Details
- Citation: [2023] SGHCF 6
- Title: WKK v WKL
- Court: High Court (Family Division)
- Date of Decision: 16 February 2023
- Judges: Choo Han Teck J
- Proceedings: General Division of the High Court (Family Division)
- Suit No: Suit No 3 of 2021
- Summonses: Summonses Nos 287 & 344 of 2022
- Plaintiff/Applicant: WKK
- Defendant/Respondent: WKL
- Counterclaim: WKL as Plaintiff in Counterclaim; WKK as Defendant in Counterclaim
- Legal Area: Civil Procedure (Extension of time; reinstatement after discontinuance under unless order)
- Key Procedural Event: Suit deemed discontinued on 15 September 2022 for non-compliance with an unless order
- Core Relief Sought: Reinstatement of the discontinued suit and extension of time to set down for trial
- Counsel: Muhammed Riyach bin Hussain Omar (H C Law Practice) for the plaintiff; Lee Chung Yen Steven (Hilborne Law LLC) for the defendant
- Related Authorities Cited: [2023] SGHC 27
- Other Case Cited: [2023] SGHCF 6 (this decision)
- Judgment Length: 4 pages, 1,022 words
Summary
WKK v WKL concerned a probate dispute between two brothers over which of two competing wills was the lawful last will of their late father. The plaintiff, WKK, commenced High Court proceedings (Suit No 3 of 2021) seeking a declaration that the will executed on 28 September 2019 was valid. The defendant, WKL, defended and counterclaimed for a declaration that the earlier will executed on 29 August 2016 was the lawful will.
However, the plaintiff’s action was deemed discontinued in its entirety due to repeated failures to comply with multiple “unless orders” requiring steps to be taken by specified deadlines to progress the case towards trial. After the suit was discontinued on 15 September 2022, the plaintiff applied by Summonses 287 and 344 of 2022 to reinstate the entire action and obtain an extension of time to set down for trial. The High Court (Family Division) dismissed both applications, holding that the application to reinstate was procedurally wrong and, on the facts, futile. The court also emphasised that the plaintiff’s explanations for non-compliance were not credible, including inconsistencies between counsel’s submissions and later evidence about the availability of funds.
What Were the Facts of This Case?
The parties were brothers. After their father died, they quarrelled over the father’s testamentary dispositions. The father had executed two wills: one on 28 September 2019 and another on 29 August 2016. The plaintiff, WKK, commenced proceedings to obtain a declaration that the 28 September 2019 will was the lawful last will. The defendant, WKL, filed a defence and counterclaim seeking the opposite declaration—that the 29 August 2016 will was the lawful will.
As the case progressed, the procedural history became central. The plaintiff’s action was not brought to trial because of repeated non-compliance with court deadlines. The court record shows that the plaintiff failed to set down the matter for trial as directed by an unless order. Specifically, the suit was deemed discontinued in its entirety on 15 September 2022 when the plaintiff failed to comply with an unless order made in HCF/ORC 272/2022.
The judgment explains that the discontinuance was not an isolated lapse. At a Probate Case Conference (“PCC”) on 2 August 2022, the plaintiff was late to the conference. An unless order was made requiring the exchange of affidavits of evidence-in-chief (“AEICs”) by 8 August 2022, failing which the action would be deemed discontinued. The plaintiff was unable to exchange the AEICs by the deadline.
At a further PCC on 16 August 2022—again, the plaintiff was late—the plaintiff sought an extension to exchange AEICs, which was itself in breach of the earlier unless order. The court granted an extension to 19 August 2022, and the action was to be set down for trial by 22 August 2022. The deadline of 22 August passed without the action being set down. This was described as the sixth non-compliance with court-ordered deadlines.
At the PCC on 7 September 2022, the plaintiff’s counsel submitted that the non-compliance was due to a lack of funds to pay the setting down court fees. Counsel further submitted that the plaintiff had now found the money and was ready to pay. On that basis, the assistant registrar issued another unless order requiring the suit to be set down for trial by 14 September 2022. That deadline was also not met, and the action was therefore discontinued on 15 September 2022.
After discontinuance, the plaintiff filed an affidavit on 28 September 2022 stating that he had only raised $30,000 of the $51,000 required for setting down a 12-day trial. This contradicted counsel’s earlier submission at the PCC on 7 September 2022 that the funds had been raised and the plaintiff was ready to pay. Rather than appealing against the discontinuance pursuant to the unless order, the plaintiff applied on 5 October 2022 for reinstatement and to set down for trial, using Summonses 287 and 344 of 2022.
What Were the Key Legal Issues?
The central legal issue was whether the High Court should reinstate an entire action that had been deemed discontinued for non-compliance with an unless order, and whether any extension of time could be granted to set down the matter for trial after the discontinuance had already occurred. This required the court to consider the procedural route available to a litigant whose suit has been discontinued under an unless order, and whether reinstatement was the correct mechanism.
A related issue was whether the court should exercise any discretion in favour of the plaintiff despite repeated non-compliance and the plaintiff’s inconsistent explanations. The court had to assess credibility and whether there was any realistic prospect that the case could proceed if reinstated, particularly given the plaintiff’s pattern of missing deadlines and the apparent mismatch between counsel’s submissions and the plaintiff’s later affidavit evidence.
Finally, the court had to address the relevance of a comparator case, Jiangsu New Huaming International Trading Co Ltd v PT Musim Mas and another [2023] SGHC 27 (“Jiangsu”), which involved an amendment to include a claim that had been struck out. The court needed to determine whether the reasoning in Jiangsu could assist the plaintiff in a context where the entire action had been discontinued (“the resurrection of the dead” problem), as opposed to saving a severed part of a claim.
How Did the Court Analyse the Issues?
The court began by characterising the procedural posture. The suit was not merely delayed; it was “vastly different” from situations where only part of a claim is struck out. Here, the entire action had been discontinued in its entirety. This distinction mattered because the plaintiff was not seeking to amend or revive a severed limb of the claim; rather, he sought to revive the whole action after it had ceased to exist procedurally.
The court then explained the procedural consequences of discontinuance under an unless order. An action that has been discontinued can only be recommenced as a fresh action, subject to the defendant’s rights to strike out. Alternatively, the plaintiff must apply for leave to appeal out of time to set aside the unless order by which the suit was discontinued. The plaintiff in this case did neither. Instead, the plaintiff applied for reinstatement and an extension of time through Summonses 287 and 344 of 2022.
In addressing whether reinstatement was available, the court drew a sharp contrast with Jiangsu. In Jiangsu, the court allowed an amendment of pleadings to include an item of claim that had been struck out. The High Court in WKK v WKL emphasised that in Jiangsu, the suit was not struck out; only an item relating to a specific sum of commission payment was struck out. The court used an analogy: a severed limb can still be saved and reattached to a body that is still “warm”. That is, the procedural “body” of the suit remained alive, and the amendment could restore a part of the claim.
By contrast, in WKK v WKL, the “dead” was the entire action. The court reasoned that the plaintiff’s attempt to reinstate the discontinued action was therefore procedurally wrong. The unless order stood, and the plaintiff was not applying to amend a part of the claim. He was seeking to revive the entire action, which the court held was not the correct approach in law and procedure.
Even if the court had discretion to reinstate, the court held that the facts would not justify it. The judge placed weight on the plaintiff’s repeated disregard of deadlines. The judgment noted that the non-compliance was one of numerous failures to comply with court deadlines, culminating in the sixth non-compliance by the time the action was discontinued. The court also considered the plaintiff’s conduct at the PCCs, including being late on multiple occasions, and the failure to comply with the successive unless orders.
The court further assessed the plaintiff’s explanations for non-compliance. The plaintiff’s counsel had submitted at the PCC on 7 September 2022 that the plaintiff lacked funds to pay setting down court fees but had now found the money and was ready to pay. Yet the plaintiff’s affidavit filed on 28 September 2022 stated that he had only raised $30,000 of the $51,000 required. The court treated this as a contradiction that undermined credibility. The judge concluded that the plaintiff’s explanations were not credible and were even contrary to what counsel had told the court.
In practical terms, the court’s analysis indicates that discretion in procedural relief is not exercised in a vacuum. Where a litigant demonstrates a pattern of non-compliance and provides explanations that do not withstand scrutiny, the court is unlikely to grant relief that would undermine the unless order regime. The court’s reasoning reflects the broader procedural policy: unless orders are designed to ensure case management discipline, and repeated failures to comply justify refusal to reinstate.
What Was the Outcome?
The High Court dismissed both applications under Summonses 287 and 344 of 2022. The court held that the application to reinstate the entire action was wrong and futile because the suit had been discontinued in its entirety and the plaintiff had not taken the proper procedural steps (such as recommencing as a fresh action or applying for leave to appeal out of time to set aside the unless order).
Costs were awarded against the plaintiff. The court fixed costs at $2,500 for each application, reflecting the court’s view that the applications were not only procedurally defective but also unsupported by credible explanations.
Why Does This Case Matter?
WKK v WKL is a useful decision for practitioners because it clarifies the limits of reinstatement after discontinuance under an unless order in the Family Division context. The judgment underscores that an unless order is not a mere scheduling directive; it carries procedural consequences that can extinguish an action. Where an entire suit is discontinued, the litigant cannot simply “resurrect” it through an application for reinstatement that bypasses the correct procedural routes.
For lawyers advising clients, the decision highlights the importance of choosing the proper remedy after discontinuance. The court indicated two alternatives: recommencing as a fresh action (subject to strike-out rights) or applying for leave to appeal out of time to set aside the unless order. Practitioners should therefore treat discontinuance as a trigger for immediate legal strategy, rather than as a problem that can be cured by a later reinstatement application.
The case also serves as a cautionary tale about credibility and consistency in submissions. The court relied on the contradiction between counsel’s earlier statement that funds had been found and the later affidavit evidence showing that the funds were not fully available. This demonstrates that courts will scrutinise explanations for non-compliance, particularly where the non-compliance is repeated and where the court has already issued successive unless orders.
Legislation Referenced
- No specific statutory provisions were identified in the provided judgment extract.
Cases Cited
- Jiangsu New Huaming International Trading Co Ltd v PT Musim Mas and another [2023] SGHC 27
- WKK v WKL [2023] SGHCF 6
Source Documents
This article analyses [2023] SGHCF 6 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.