Kraze Entertainment (S) Pte Ltd v Marina Bay Sands Pte Ltd

Choo Han Teck J:

[2] The deadline was thus 4 pm on 5 February 2013. The plaintiff did not appeal against the Order and so on 1 February 2013 it applied by Summons No 621 of 2013 (“SUM 621/2013”) for an extension of 14 days from the date of disposal of the summons to furnish the security ordered. On the same day, counsel for the plaintiff obtained an order that SUM 621/2013 be heard on 5 February 2013. The defendant’s solicitors were informed of the hearing on 4 February 2013. On 5 February 2013, AR Leong, having no supporting affidavit to consider, and no submission on the grounds for the application for an extension of time, enquired of counsel the grounds for the application. The court’s query was answered by counsel as follows:

I do not think that in the circumstances it was at all surprising or wrong for AR Leong to dismiss SUM 621/2013. It is also not surprising, given the nature and circumstances of this action that the plaintiff appealed against AR Leong’s order of 5 February 2013. I should now add that the day after I dismissed the appeal, the solicitors for the plaintiff wrote a letter to court dated 8 February 2013. The key paragraph (paragraph 3) of the letter stated as follows:

The rest of that letter purporting to set out the said grounds is not important at the moment. The plaintiff’s appeal was dismissed and the record stands as it stood. The plaintiff has no right to tell the court, especially by letter, how the record should stand. It could, if it wanted to, apply to rectify the record or to record a further submission. It would be left to the discretion of the court as to whether that application would be heard. As far as I am concerned, the plaintiff’s letter of 8 February 2013 is not part of the record.

[3] Returning to the appeal before me on 7 February 2013, I am of the view that it is indeed harsh for an action to be struck out without trial, especially when it is struck out for failing to comply with an interlocutory order. Mr Mohammed Reza (“Mr Reza”), counsel for the plaintiff, relied on Syed Mohamed Abdul Muthaliff and another v Arjan Bhisham Chotrani [1999] 1 SLR(R) 361 (“Syed Mohamed”) and urged me to agree that in exercising its discretion the court ought to consider the prejudice to the defaulter. He submitted that the court should balance the failure to comply with the competing interests, namely, depriving the plaintiff of trial on the merits. Mr Reza argued that the defendant would not suffer “irreparable mischief” if an extension were to be granted and further submitted, relying on Finnegan v Parkside Health Authority [1998] 1 All ER 595 at 604, that the absence of a good reason is not in itself sufficient to refuse an extension of time. Praying that justice be done, Mr Reza ended his submission.

Mr Davinder first objected to the use of this affidavit to support the application for an extension of time when it was filed in support of a separate application for a stay of execution even though there was no execution in this case to be stayed at all – the failure to comply with the unless order, Mr Davinder submitted, merely meant that the plaintiff’s case was struck out. It was contended that the action was not time-barred; the plaintiff could file another suit or apply to restore the action.

[8] For the reasons above, the appeal was dismissed.