Telecom Credit Inc v Midas United Group Ltd [2018] SGCA 73

Introduction

This appeal arises from a decision by a High Court Judge to order a trial to determine a garnishee’s liability to pay a debt claimed to be due to the judgment debtor. The appellant is a judgment creditor who obtained a provisional garnishee order against the respondent, who was then required to show cause why the order should not be made absolute. Affirming the assistant registrar’s decision, the Judge was persuaded by the equivocal state of the evidence at the show cause hearing not to make the order absolute and instead to order a trial to determine whether the respondent owed a debt to the judgment debtor: see Telecom Credit Inc v Star Commerce Pte Ltd (Midas United Group Pte Ltd, garnishee) [2017] SGHC 300. The appellant now appeals against that decision.

Before the appeal came on for hearing, the respondent who was then represented filed a Respondent’s Case in which it raised the preliminary objection that this court has no jurisdiction to hear the appeal because the appellant needed, but failed to obtain, leave to appeal. Although the respondent failed to appear at the appeal hearing to pursue the points made in its Case, we considered that the issue of jurisdiction required further examination. We therefore heard full submissions on the same from the appellant in addition to submissions on the substantive merits of the appeal.

The appellant would require leave to appeal if the Judge’s order is an “order at the hearing of any interlocutory application” under para (e) of the Fifth Schedule of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the Act”). Although garnishee proceedings are common, there appears to be no direct authority on this issue of whether the order falls within para (e). Therefore, to explain our views, we will first consider the general role of para (e) in the leave to appeal regime. Next, we will examine how the authorities have interpreted the words “order” and “interlocutory application” in para (e), with a focus on the latter expression, which is crucial to this appeal, as will be seen. Finally, we will examine the nature of garnishee proceedings, and consider whether an order by a High Court Judge that a garnishee’s liability be determined at trial is caught by para (e). In short, our view is that it is. The appeal must therefore be dismissed, the appellant having failed to obtain leave to appeal.

Role of para (e) in the leave to appeal regime

Under the Act, appeals to the Court of Appeal are restricted, basically, according to the type of matter from which the order sought to be appealed against arises. The Act does this by specifying expressly where leave to appeal is required and where decisions are non-appealable: see s 34, the Fourth Schedule and the Fifth Schedule. However, due to the limitations of language and the variety of orders that can be made in differing types of matters, not everything can be spelt out in advance. Therefore, some general provision is required to deal with situations that have not been mentioned explicitly.

Authorities on para (e)

OpenNet, Dorsey and The Nasco Gem

Analysis of the cases

The meaning of “interlocutory application” in para 5(e)

Application to garnishee show cause proceedings

Conclusion