Lee Choon Keng v Nadarajan a/l Iyavoo and Another

Kan Ting Chiu J:

[1] This matter arises out of a road traffic accident in Singapore. The plaintiff was riding his motor cycle when it was involved in a collision with a car driven by the second defendant. Soon after that collision, a motor trailer driven by the first defendant came along and collided into the motor cycle and the car.

[2] The plaintiff’s motor cycle and the motor trailer driven by the first defendant were Malaysian-registered vehicles, whilst the second defendant’s car was Singapore-registered.

[3] The plaintiff instituted legal proceedings in Singapore against the two defendants for damages arising from the collisions. He filed his action in the District Court on 23 April 2007. The principal injuries he sustained were a fracture to his right tibia and fibula, with shortening, loss of movement and weaknesses.

[4] On 15 July 2008, the plaintiff applied to transfer the action to the High Court for hearing. By that time the writ had been served, the pleadings had closed and the witnesses’ affidavits of evidence-in-chief had been exchanged. The application was opposed by the two defendants.

[5] The application was supported by an affidavit of the plaintiff’s solicitor on 14 July 2008 (“the affidavit in support”), who deposed at [4], [6] and [7]:

I will examine the ground disclosed in [6] and [7] under “Recovery by registration”.

[6] Two further grounds were brought up after the application was dismissed. The plaintiff’s solicitor stated in a letter dated 1 September 2008 (“the letter”) seeking leave to make further submissions (which I rejected):

[7] I will discuss the further ground in sub-para (a) under “The claim exceeds the District Court’s jurisdiction” and the ground in sub-para (e) under “Recovery against the insurers”.

[8] These two grounds were not included in the affidavit in support of the application, and they should not be taken into consideration. However, I will consider the merits of these grounds in the interest of completeness and because my comments apply to similar applications that may be made in other actions on the same grounds.

[9] The reason put forth in [6] of the affidavit in support was that while a judgment of the Singapore High Court can be registered and enforced in Malaysia under the Reciprocal Enforcement of Judgments Act 1958 (Act 99) (“REJA”) of Malaysia, a judgment of the District Court cannot be registered under the REJA.

[10] Two points can be made on the utility and necessity for registration:

a judgment which the plaintiff obtains against the first defendant may be enforced in Malaysia even if it is not registered under the REJA; and

for the reasons stated in [21]-[23] hereof, the registration of any judgment will only enable it to be enforced against the first defendant, but not against the insurers of the motor trailer.

[11] As the plaintiff’s solicitor stated, “the Plaintiff may sue on a Judgment that may be obtained at our Singapore Subordinate Courts in Malaysia subsequently”. This is possible because under Malaysian law foreign judgments in personam can be recognised and enforced. Halsbury’s Laws of Malaysia Vol 26 Malayan Law Journal Sdn Bhd 2005 states at [440.093]:

The reference to debt limits the judgments which may be recognised and enforced to money judgments, and excludes other forms of judgments.

[12] In the present case, any judgment that the plaintiff may obtain against the first defendant would be a money judgment for damages for injuries and losses incurred in the accident. Consequently, while a judgment against the first defendant from the District Court is not registerable and enforceable under the REJA, the plaintiff can sue the first defendant on the judgment in Malaysia, and then enforce the Malaysian judgment against him.

[13] Counsel also referred to s 54B of the Subordinate Courts Act (Cap 321 2007 Rev Ed) (“SCA”) in the letter. The provision states:

and the Explanation thereto states:

[14] Section 54B was incorporated into the SCA in 2005. Even before that provision was enacted, the question of transferring an action from the Subordinate Courts to the High Court to aid enforcement had been considered in Cheong Ghim Fah v Murugian s/o Rangasamy (No 2) [2004] 3 SLR 193, wherein V K Rajah JC stated at [15]:

and his views were evidently taken into account when s 54B was enacted.

[15] The learned judge’s reference to a judgment of the subordinate courts not being recognised (as contrasted to with being enforceable) leaves open the situation where the judgment is recognised, but is not enforceable. The words “would ordinarily be” in the Explanation allow such a judgment to be considered on a different basis. If a judgment can be enforced by an action founded on the judgment, then the need and justification to transfer the action to facilitate registration is reduced.

[16] If the plaintiff had sued the first defendant for non-monetary relief, he would have good cause to have his action transferred to the High Court. However, there are two factors which weakened his case:

enforcement is possible in Malaysia without the transfer as explained in [11] – [12] herein; and

the solicitors for the first defendant had stated at the hearing that the insurers of the motor trailer had not at any point shown any unwillingness to satisfy any judgment or any intention to repudiate liability towards the first defendant.

[17] The plaintiff may be unhappy that he has to sue in Malaysia on the District Court judgment to recover the amount awarded. But a person in his position must institute legal proceedings in Malaysia even if the action is transferred because he still has to apply in Malaysia to have the High Court judgment registered there. Thus, he will have to commence legal proceedings in Malaysia whether or not the action is transferred to the High Court.

[18] The new ground put forward in the letter, that the claim is in excess of $250,000 was in direct contradiction of the clear confirmation in the affidavit in support that “the claim is within the jurisdiction of the Subordinate Courts”. There was no explanation offered as to how much the claim was, how it was made up and why it had increased between July 2008 when the affidavit was made and September 2008 when the letter was written.

[19] When a party applies to transfer a case from a lower court to a higher court on the ground that the claim is in excess of the jurisdiction of the original court, it should adduce proper evidence of that fact. The plaintiff has failed to do that.

[20] Sub-para (e) of the letter reveals the primary reason for the application. The plaintiff knew that both defendants are insured against motor accident claims. In fact both defendants are represented in this action by solicitors appointed by their respective insurers. The second defendant’s insurers are a Singapore company, but the first defendant’s insurers are a Malaysian company. The plaintiff’s solicitor’s reference to the Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189 2000 Rev Ed)) (“M V (T-P R & C) A”) of Singapore, and the equivalent Malaysian statute, the Road Transport Act 1987 (Act 333) (“RTA”), indicates that the plaintiff is looking primarily to the insurers to satisfy any judgment that he may obtain in the action. I believe that the plaintiff does not have high expectations that any judgment can be recovered from the first defendant personally.

[21] In the M V (T-P R & C) A, the provisions which oblige motor insurers to pay damages awarded against their insured are s 9(1):

and s 4(1) (b):

The insurers referred to are insurers of vehicles registered in Singapore.

[22] In the RTA, the equivalent provisions are s 96 (1):

and s 91(b):

[23] When s 91 (b) refers to injuries caused on a road, that refers to a road in Malaysia. The RTA, being domestic legislation, has no extra-territorial application, and does not apply to accidents in Singapore. This is made clear in s 1 (3) of the act which specifies that the act shall apply throughout Malaysia (and by implication only in Malaysia).

[24] For these reasons neither the M V (T-P R & C) A nor the RTA can assist the plaintiff in making any recovery from the first defendant’s insurers. The former Act only applies to the insurers of Singapore-registered vehicles, and the latter Act does not apply to claims arising from road accidents which occur outside Malaysia.

[25] In these circumstances, I dismissed the plaintiff’s application to transfer his action to the High Court because:

he can enforce any judgment that he may obtain against the first defendant without having the action transferred;

he will not be able to enforce any judgment against the first defendant’s insurers even if the action is transferred to the High Court and the judgment is registered in Malaysia; and

it is inimical to efficient case management to transfer an action which is within the jurisdiction of the District Court to the High Court unless the applicant can show that there is a real need or purpose for the transfer, and the plaintiff had not done that.