Ong Wui Swoon v Ong Wui Teck and another matter

Woo Bih Li J:

[1] Ong Wui Swoon (“the Sister”) and Ong Wui Teck (“the Brother”) are two out of six siblings. The Sister had alleged that the Brother had failed in his duty as an administrator of their late father Ong Thiat Gan’s estate (“the Estate”) to render an accurate account of its assets. She therefore sued the Brother in Suit No 385 of 2011 asking him to render a proper account of all the Estate’s assets, and also to pay damages for his alleged breach of duty. The Sister also asserted a beneficial interest in the sale proceeds of a private property, which she claimed the Brother held on trust for their father.

[2] On 30 October 2012, I delivered my written judgment (which was reported in Ong Wui Swoon v Ong Wui Teck [2013] 1 SLR 733 (“the Main Judgment”)). I decided that the Brother had failed to give a proper account of the assets of the Estate. I ordered the Registrar of the Supreme Court (“the Registrar”) to conduct an inquiry to determine various matters as set out at [143] of the Main Judgment. For completeness, I would mention that I dismissed the Sister’s claim for a beneficial interest in the sale proceeds of the private property mentioned above.

[3] The inquiry was conducted before Assistant Registrar Shaun Leong (“AR Leong”) in TA 13 of 2013. On 24 September 2014, AR Leong decided that the Estate was in fact positive in the sum of $15,756.47. He ordered the Brother to pay the Sister $1,313 as her one-twelfth share of the Estate.

[7] Subsequently, the Brother filed Originating Summons No 1187 of 2013 (“OS 1187/2013”) on 12 December 2013 to seek an extension of time to appeal against the decision of AR Leong.

[9] The Sister then filed an appeal on 5 March 2014 against AR Khng’s decision to grant the Brother’s application for an extension of time to appeal. This was Registrar’s Appeal No 72 of 2014 (“RA 72/2014”).

[10] Both RA 54/2014 and RA 72/2014 came up for hearing before me on 19 May 2014. I heard RA 72/2014 first. If that appeal was allowed in its entirety, then no extension of time would be granted to the Brother and his own appeal would fail.

[11] After hearing arguments, I allowed the Sister’s appeal (in RA 72/2014) partially as I elaborate below.

[14] The Brother has filed two appeals against my decisions to the Court of Appeal, ie, Civil Appeal No 95 and No 96 of 2014 (“CA 95/2014 and CA 96/2014”) respectively.

[18] I set out my reasons below for my decisions.

[19] As is evident from the above background, the issue before me for RA 72/2014 was whether the Brother should have been granted an extension of time to appeal against the two decisions of AR Leong in the inquiry. As I had not allowed him an extension of time to appeal against AR Leong’s substantive decision, that is the subject of CA 95/2014 and I will focus on that herein.

[20] If CA 95/2014 is successful, it is up to the Court of Appeal to decide whether to remit RA 54/2014 back to me to hear the Brother’s appeal against AR Leong’s substantive decision. If CA 95/2014 is not successful, then AR Leong’s substantive decision stands.

[21] As for CA 96/2014, two other possible issues are mentioned in [16] above. I will deal with them also in these grounds of decision.

[22] The court should consider four main factors in an application for an extension of time to appeal. These are:

(a) the length of the delay;

(b) the reasons for the delay;

(c) the merits of the appeal;

(d) the degree of prejudice to the other side if the extension of time is granted.

[23] In Anwar Siraj and another v Ting Kang Chung John [2010] 1 SLR 1026 (“Anwar Siraj”), the Court of Appeal (at [30]) mentioned that while these are the four relevant factors, two other considerations should not be disregarded. The first is that the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”) must prima facie be obeyed with reasonable diligence being exercised. The second is that the need for finality was a paramount consideration. The precise facts and circumstances of each case are also important, see [28] of Lee Hsien Loong v Singapore Democratic Party and others and another suit [2008] 1 SLR(R) 757.

[24] On the length of the delay, AR Leong’s decisions were given on 24 September 2013. OS 1187/2013 was filed on 12 December 2013. This is more than two and a half months from 24 September 2013. However, under O 56 r 1(3) of the ROC, the Brother had 14 days to appeal against that decision. The 14 days would expire on 8 October 2013. Therefore, the actual delay was more than two months which is more than four times the period prescribed under the ROC.

[25] As for the reasons for the delay, I should first set out in more detail the background and chronology leading to the Brother’s application in OS 1187/2013.

[28] On 1 October 2013, the Brother wrote to the Registrar setting out further arguments on the substantive inquiry after AR Leong’s decision was given on 24 September 2013.

[29] On 2 October 2013, the Registrar replied to the Brother to state that “the Court does not require any further arguments. The Court’s decision made on 24 September 2013 stands”.

[30] The Brother had 14 days from 24 September 2013 to appeal against any aspect of or the entire decision of AR Leong. This expired on 8 October 2013. He did not file an appeal within the deadline.

[31] On 24 October 2013, he sent a letter to the Registrar to state that he would be overseas and not available from 30 October 2013 to 20 November 2013 and would be incommunicado during that period.

[37] By a letter dated 25 November 2013, Tan & Au forwarded a copy of the extracted order of court of 24 September 2013 to the Brother.

[42] OS 1187/2013 was heard by AR Khng. On 24 February 2014, AR Khng granted the Brother’s application for an extension of time to appeal against the entire decision of AR Leong. Thereafter, he filed RA 54/2014 in Suit 385 of 2011 on 25 February 2014.

[43] For the avoidance of confusion, I should mention that in OS 1187/2013, the Brother was the plaintiff whereas he was the defendant in the main action, ie, Suit 385 of 2011.

[44] As mentioned above, the Sister filed an appeal on 5 March 2014 against AR Khng’s decision. This was RA 72/2014. I allowed the appeal partially as elaborated above.

[50] I did not accept this explanation. First, although the Brother is a lay person he is not totally unaware of court processes and procedures. He has been engaged in litigation with the Sister for some time. Apparently, there is also litigation in respect of their mother’s estate as well. At times, the Brother has been represented by solicitors but on other occasions, he represented himself. When he appeared in person before me from time to time, he was able to present arguments with the apparent benefit of legal research or legal advice.

[51] Secondly, and more importantly, he had not mentioned that he would appeal against the substantive decision of AR Leong until OS 1187/2013 was filed on 12 December 2013. True, he did tender further arguments by his letter dated 1 October 2013 to the Registrar but after he was informed by the Registrar’s letter dated 2 October 2013 that no further arguments were required, he said no more about the substantive decision.

[57] Furthermore, even if the Brother’s incorrect perception was the result of a genuine mistake or oversight, a mistake is not in itself necessarily a sufficient reason to grant an extension of time, see [35] of Anwar Siraj which cites a passage from Denko-HLB Sdn Bhd v Fagerdala Singapore Pte Ltd [2002] 2 SLR(R) 336.

[58] As for the merits of the Brother’s intended appeal, I accepted that his appeal was not clearly hopeless but it was also uncertain whether the appeal would succeed.

[60] Furthermore, the Estate’s assets were not confined to the assets in dispute. The Estate had fixed deposits with Asia Commercial Bank Ltd and a savings account with OUB Ltd (see items (f), (g) and (h) at [65] of the Main Judgment). These assets amounted to another $82,264.01.

[61] In so far as the Brother had also mentioned that there was income tax liability of $7,727.77, that sum was already part of the debts and expenses of the Estate referred to above.

[63] Aside from the merits of the Brother’s intended appeal, I also noted that the $1,313 which the Brother was to pay under the substantive decision of AR Leong was a small sum and I was of the view that there should be finality on the substantive dispute.

[64] Therefore, while I accepted that there was no undue prejudice to the Sister if an extension of time was granted to the Brother to appeal against the substantive decision, I was of the view that such an extension should not be granted in view of the length of the delay, the absence of good reasons for the delay, the small sum involved and the need for finality.