Champion Management Pte Ltd v Kee Onn Engineering Pte Ltd [2017] SGHC 116

This registrar’s appeal concerned Kee Onn Engineering Pte Ltd’s (“Kee Onn”) application for leave to file a rejoinder (“Proposed Rejoinder”). I pause here to note that leave should have been sought to serve, as opposed to file, the Proposed Rejoinder: see O 18 r 4 of the Rules of Court (Cap 322, R5, 2014 Rev Ed) (“ROC”). But as the point was not taken, I move on. At the hearing below, Kee Onn’s application was dismissed by the assistant registrar. Dissatisfied with the decision, Kee Onn filed the present appeal, which I dismissed at the end of the hearing before me.

I noted that such applications did not find their way into many case files: see Singapore Civil Procedure 2017 vol 1 (Foo Chee Hock JC gen ed) (Sweet & Maxwell, 2017) (“Singapore Civil Procedure”) at para 18/4/1. I also observed that pleadings had of late bloated in length while withering in clarity, and rejoinders were an aspect of the problem of ensuring that issues were delineated in pleadings with efficiency and lucidity. Kee Onn’s application was therefore deserving of closer examination, and I now set out the reasons for my decision.

The heart of the dispute, which was situated in the context of a case involving a contract for renovation works (Suit 1338 of 2016), may be distilled as follows. In paragraphs 11- and 12 of its amended statement of claim, Champion Management Pte Ltd (“Champion”) averred that the variation orders (“VOs”) submitted by Kee Onn had not been agreed to by Champion and that Kee Onn had not carried out the alleged variation works. In its defence (“Defence”), Kee Onn traversed these allegations and essentially took the position that the VOs had been agreed and that the variation works had been completed or substantially completed. Thereafter, in the reply (“Reply”), Champion pleaded two e-mails (which had appeared in the amended statement of claim) to show that the VOs had not been approved and the variation works had not commenced. Kee Onn then sought leave to file the Proposed Rejoinder to respond to the Reply.

Before me, the arguments ranged back and forth. On the one hand, Kee Onn’s primary submission was that the Proposed Rejoinder would bring clarity to the salient issues at trial. On the other hand, Champion essentially argued that leave should not be granted to serve the Proposed Rejoinder because it contained paragraphs that were either already in the Defence or contravened the general rule that evidence should not be pleaded. In the end, I agreed with Champion’s arguments, which I found also to be consonant with the principle that leave to serve a rejoinder should only be granted under exceptional circumstances: see Singapore Civil Procedure at para 18/4/1.

With respect to the argument that the allegations in the Proposed Rejoinder had already been pleaded, Champion referred me to Norris v Beazley (1877) 35 LT 845 (“Norris”). Norris was cited in Singapore Civil Procedure at para 18/4/1 for the proposition that leave to serve a rejoinder would only be granted if it was “really required to raise matters which must be specifically pleaded” [emphasis added]. The corollary of this proposition was that a rejoinder must not be a mere repetition of what had already been pleaded. Denman J elucidated in Norris as follows (at p 846):

I agreed with the above passage, which applied squarely to the relevant paragraphs in the Defence and the Proposed Rejoinder. I set them out in the following table for comparison (with emphasis added):

As made clear from the table above, the cited paragraphs from the Proposed Rejoinder were ringing echoes of the Defence. Therefore, as far as paragraphs 2(a), (b) and (c) of the Proposed Rejoinder were concerned, it was apparent that a rejoinder was unnecessary. Although the Proposed Rejoinder specified the precise VOs in issue (ie, VOs 1, 2, 3 and 4), this was merely an amplification of the Defence. I was also of the view that the word “commenced” in paragraph 2(b) of the Proposed Rejoinder added nothing of substance. It could not be seriously disputed that variation works could only be completed or substantially completed if Kee Onn had commenced them.

As noted by the Court of Appeal in Yeow Chern Lean v Neo Kok Eng and another [2009] 3 SLR(R) 1131 at [34], there must be “finality in the pleading process” and “an end at some stage”. Therefore, matters raised in a rejoinder must be “necessary response[s]” to a reply (at [35]). Here, the substance of the dispute had already been pleaded in the Defence. Also, by way of implied joinder of issue under O 18 r 14(2)(a) of the ROC, Kee Onn was not prejudiced, and not precluded from proving the facts in paragraphs 2(a), (b) and (c) of the Proposed Rejoinder even in the absence of these paragraphs.

In my view, the redundancy of paragraphs 2(a), (b) and (c) of the Proposed Rejoinder was too clear for any argument, and it appeared that counsel for Kee Onn was at her wits’ end, and had to recognise this. Certainly, at the hearing before the assistant registrar, Kee Onn conceded that paragraphs 2(a), (b) and (c) of the Proposed Rejoinder had already been covered in the other pleadings. Similarly, at the hearing before me, Kee Onn stated that it was “prepared to drop everything” except for paragraphs 2(d) and (e) of the Proposed Rejoinder.

I therefore turn now to address these two paragraphs, along with paragraphs (i) and (ii) under the “Particulars” of the Proposed Rejoinder. These paragraphs are set out as follows:

Citing Sharikat Logistics Pte Ltd v Ong Boon Chuan and others [2011] SGHC 196, Champion argued that the above paragraphs should not be pleaded because they raise evidence concerning some e-mails and “Proforma Invoices”. I agreed with Champion. As O 18 r 7(1) of the ROC mandated, pleadings must only contain facts and “not the evidence by which those facts are to be proved”. I was therefore not impressed by Kee Onn’s argument that these were “new, material facts” necessitating a rejoinder. And even if such evidence could be pleaded, it was unnecessary (as was the case for paragraphs 2(a), (b) and (c) of the Proposed Rejoinder) for Kee Onn to do so. As counsel for Champion candidly stated, “Kee Onn is not estopped from proving what they had just said in the Rejoinder (para 2(d) and (e)) even if there is no Rejoinder”, presumably because there was an implied joinder of issue.

In the light of the above, it was clear that Kee Onn’s application for leave to file the Proposed Rejoinder was correctly refused by the assistant registrar. As an aside, I observed that the Reply might itself be deficient. For one, it might be said that the e-mails referenced in the Reply constituted evidence (see above at [3]). When pressed on this point, counsel for Champion submitted that Champion did not require leave to serve a reply. I did not find this answer to be entirely satisfactory. But given that I was not hearing an application to impugn the correctness of the Reply, I make no further comments on this point nor do I prejudge any issue vis-à-vis the Reply should Kee Onn decide to challenge it.