Smith, Carlson Clark v Perkins, Andrew Layton

Deputy Registrar Don Ho:

[1] This is an application brought by the defendant in DC/OC 2227/2024 (“OC 2227”), Mr Andrew Layton Perkins (“the Applicant”), for the following unless orders against the claimant, Mr Carlson Clark Smith (“Mr Smith”):

[4] The dispute between the parties can be traced to DC/OC 1073/2022 (“OC 1073”), an action filed by the Applicant against Mr Smith on 29 November 2022. Similar to the present proceedings, Mr Smith has been unrepresented and acting in person while the Applicant has been represented by Mr Chong Yew Meng, Luke (“Mr Chong”) of Anglo Law Chambers LLC.

[5] OC 1073 was a landlord and tenant dispute over an apartment owned by the Applicant where the Applicant claimed, among other things, repossession of the apartment from Mr Smith, the sum of $50,499.99 in rental arrears, double rent, and monthly rent at $5,000.00 until the delivery of possession of the apartment. In response, Mr Smith filed a counterclaim against the Applicant, relying on the following “causes of action” that arose when the Applicant purportedly broke into the apartment in question on 21 November 2022:

(a) The violation of ss 442, 453(1)(c), 459 and 461 of the Penal Code 1871 (2020 Rev Ed) by “breaking and entering [Mr Smith]’s place of residence and attempting to cause him grievous hurt”.

(b) The violation of ss 3(1)(a), 7(3)(d), and 8A(1)(a) of the Protection from Harassment Act 2014 (2020 Rev Ed) by, among other things, violently confronting Mr Smith, shouting the untrue allegation that Mr Smith was 18 months behind on his rent within earshot of the building duty manager which caused considerable embarrassment to Mr Smith, and accusing Mr Smith of lying about his severe back problems.

(c) The violation of ss 13 and 14 of the Personal Data Protection Act 2012 (2020 Rev Ed) by filming Mr Smith without permission when “[Mr Smith] had not even had time to get dressed and was still in his underwear”.

For these alleged statutory violations, Mr Smith counterclaimed the sum of $60,000.00 from the Applicant.

[6] On 26 June 2023, following a conciliation session in the State Courts before a District Judge, the parties entered into an agreement in full and final settlement of the dispute. Among other things, the agreement provided that Mr Smith shall pay the sums of $10,000.00 and $70,000.00 respectively in two tranches to the Applicant.

[7] Thereafter, Mr Smith filed a Notice of Discontinuance of his counterclaim on 7 July 2023. On 7 September 2023, Mr Chong informed the deputy registrar that Mr Smith had defaulted on making the second tranche of payments to the Applicant. Accordingly, Mr Chong sought to file a consent final judgment.

[8] On 11 December 2023, Mr Chong, who mentioned on behalf of Mr Smith, successfully filed a request to record a consent final judgment asynchronously before a duty registrar of the State Courts. The consent final judgment vide DC/JUD 2012/2023 (“JUD 2012”) reads:

Notably, the request annexed the settlement agreement between the parties and a draft consent final judgment, both of which stated the interest rate at 5.33% per month. Mr Smith initialled each page of the settlement agreement and replied via email to Mr Chong with his express confirmation of the draft consent final judgment. The settlement agreement was further witnessed by Mr Smith’s wife, who appended her signature below the signature of Mr Smith at the last page of the settlement agreement.

[10] However, no such application was subsequently filed. Instead, Mr Smith filed OC 2227 on 27 December 2024 to set aside JUD 2012 on the ground that he is unilaterally mistaken as to the interest rate on the settlement sum of $70,000.00. Mr Smith contends that the interest rate of 5.33% should be calculated on an annual rather than monthly basis.

(a) First, Mr Smith had not adduced evidence of any assets in Singapore from which a costs order could be satisfied. The invoices pertaining to the purported storage of household goods did not demonstrate the nature or value of those goods.

(b) Second, DR Teo was not satisfied that the order would stifle Mr Smith’s claim. Mr Smith had not substantiated his assertion that he was of limited financial means, and his claim that he was not earning a regular income was difficult to reconcile with his earlier affidavit evidence that he was employed as an executive director.

(c) Third, Mr Smith had previously failed to satisfy a costs order of $1,200 made in proceedings involving the same parties, notwithstanding that he was present when the order was made

(d) Fourth, Mr Smith’s failure to pay the second tranche under the settlement agreement (see [7] above) preceded his alleged discovery of the mistake in the interest rate, and Mr Smith himself had not taken steps to prosecute the proceedings expeditiously.

(e) Finally, while DR Teo did not think that the merits of the parties’ respective cases would affect his decision, he observed that Mr Smith’s case could not be characterised as having a very high chance of success, given his participation in the process leading to the settlement agreement and the consent judgment which he now sought to set aside.

[14] Thereafter, on 17 September 2026, the Applicant filed the present application. I heard the parties on 29 October 2026 and reserved judgment.

[17] The Applicant maintains that both grounds independently justify striking out the claim on an unless order basis.

[20] I shall deal first with Prayer 1 which seeks an unless order with the consequences of the dismissal of OC 2227.

[21] In Mitora Pte Ltd v Agritrade International (Pte) Ltd [2013] 3 SLR 1179 (“Mitora”), the Court of Appeal observed at [45(a)] that an unless order stipulating the consequence of dismissal should not be given as a matter of course, but as a last resort when the defaulter’s conduct is inexcusable. The Court of Appeal further cautioned at [46] against the indiscriminate issuance of unless orders carrying the consequence of striking out a litigant’s claim or defence in its entirety, as this would effectively deprive a litigant of his substantive rights on account of a procedural fault.

[22] However, these observations must be understood in their proper context. Indeed, the need to read Mitora in its factual context was subsequently emphasised by the General Division of the High Court (“High Court”) in Wuhu Ruyi Xinbo Investment Partnership (Ltd Partnership) v Shandong Ruyi Technology Group Co, Ltd and another [2025] 4 SLR 1262 (“Wuhu Ruyi (HC)”) at [161]–[162], and expressly endorsed by the Court of Appeal in Wuhu Ruyi Xinbo Investment Partnership (Ltd Partnership) v European Topsoho Sàrl [2025] 2 SLR 383 (“Wuhu Ruyi (CA)”) at [37]–[38]. Mitora concerned the striking out of the appellant’s statement of claim following its failure to comply with two unless orders for the discovery of documents. Although the appellant had failed to comply with the initial deadlines, it had subsequently disclosed substantially all the documents required. In particular, the respondent sought to rely on the appellant’s failure to disclose monthly bank statements, notwithstanding that the appellant had already disclosed bank passbooks relating to the relevant period. This objection was raised belatedly, after the respondent had sight of the bank passbooks for several months (Mitora at [21]–[23]). The Court of Appeal also found that the appellant’s initial difficulty in complying with the discovery orders was attributable in part to extraneous circumstances, namely the reluctance of a third party to provide the documents. Further, the respondent had suffered no irremediable prejudice from the delayed disclosure (Mitora at [41]). The Court of Appeal also expressed concern that the appellant had been afforded only five days, including a weekend, to comply with the unless orders (Mitora at [46]). In those circumstances, the Court of Appeal held that it was disproportionate to strike out the appellant’s claim for what was, in substance, a technical breach of the unless orders (Mitora at [25]–[26] and [41]).

[23] In my respectful view, Mitora should not be read as laying down an inflexible rule that an unless order carrying the consequence of dismissal may only be imposed where there is a positive finding of deliberate or contumelious conduct on the part of the defaulter. While the Court of Appeal observed at [45(a)] that such an order should only be made as a last resort when the defaulter’s conduct is inexcusable, it does not necessarily follow that inexcusable conduct must amount to deliberate or contumelious non-compliance. The question is whether the defaulter’s conduct, viewed in all the circumstances, is sufficiently inexcusable to warrant the imposition of an unless order carrying such a consequence.

[24] Indeed, the Court of Appeal in Mitora acknowledged at [42] that unless orders remain a potent tool for the efficient and prompt administration of justice. The observations at [45]–[46] must therefore be understood as guidelines governing the proportionate exercise of the court’s discretion, having regard to the particular circumstances of the case. In Energy & Commodity Pte Ltd and others v BTS Tankers Pte Ltd [2021] 2 SLR 877 (“Energy & Commodity”) at [20]–[22], the Court of Appeal affirmed that the guiding principle in deciding whether to impose an unless order is proportionality, and distinguished Mitora on its facts. More recently, in Tan Tse Haw v Peh Tian Swee and another [2025] SGHCR 9 (“Tan Tse Haw”) at [41], AR Chong Fu Shan observed that the court is not invariably bound to impose the least onerous possible sanction, provided that an unless order carrying the consequence of striking out is not wholly disproportionate to the default. I wholeheartedly agree with AR Chong’s observation.

[25] The distinction between the imposition and enforcement of an unless order is therefore important. In the present application, I am concerned with the former. In my view, the authorities establish that an unless order carrying the consequence of dismissal or striking out should only be imposed as a last resort, where the defaulter’s conduct is sufficiently inexcusable and such a consequence is justified and proportionate in the circumstances: Mitora at [45]–[46]; Energy & Commodity at [20]–[22]. In Oro Negro Drilling Pte Ltd and others v Integradora de Servicios Petroleros Oro Negro SAPI de CV and others [2025] SGHCR 28 (“Oro Negro Drilling”), AR Perry Peh identified two considerations in determining whether an unless order carrying the consequence of dismissal is warranted. The first concerns whether the defaulting party’s conduct is sufficiently inexcusable to warrant the imposition of such a sanction. The second concerns the subject matter of the order breached, and whether further non-compliance would risk prejudicing a fair adjudication of the matter, such that an unless order is necessary to secure compliance (Oro Negro Drilling at [73]).

[26] In my view, the authorities are clear that while deliberate or contumelious non-compliance would weigh strongly in favour of such an order, it is not necessarily a prerequisite. The court must consider the nature and circumstances of the non-compliance, the purpose of the order breached, the prejudice to the parties, and whether a less drastic order would suffice. As explained by the Court of Appeal in Wuhu Ruyi (CA) at [36]–[40], this assessment must be undertaken when the unless order is first imposed, since its stipulated consequences would ordinarily take effect upon non-compliance without a fresh assessment of proportionality.

[34] Knowles QC subsequently refused to grant a further extension of time or relief from sanctions, having regard to, among other things, the claimant’s continued failure to furnish security despite the opportunities afforded to it and the absence of a satisfactory explanation for its non-compliance (SC DG Petrol at [24]–[25]). Notably, Knowles QC observed at [12] that while practices varied as to whether proceedings should be stayed pending the provision of security or made subject to an unless order, the practice in the English Commercial Court was ultimately to dismiss a claim if security was ordered but not furnished.

[37] Nevertheless, the court in Craft Development recognised at [73] that an unless order should not be imposed unless its consequences could be justified, and that the court must be satisfied that striking out would be a proportionate consequence of continued non-compliance. In assessing proportionality, the court considered the period to be afforded for compliance as an important factor (Craft Development at [74]). Although the claimant had made some attempts to raise funds, including exploring insurance arrangements and the sale of a property, no security had been furnished for more than three months after the first payment had fallen due (Craft Development at [74]). In the circumstances, the court imposed an unless order requiring the claimant to furnish security in the sum of £226,000 within a further six weeks, failing which the claim would stand struck out (Craft Development at [75]).

[39] First, an unless order carrying the consequence of dismissal or striking out should not be imposed as a matter of course, but as a last resort where the defaulter’s conduct is sufficiently inexcusable and the stipulated consequence is justified and proportionate in the circumstances: Mitora at [45]–[46]; Energy & Commodity at [20]–[22]. While deliberate or contumelious non-compliance would weigh strongly in favour of imposing such an order, it is not necessarily a prerequisite. In determining whether such an order is warranted, the court should consider not only the nature and circumstances of the non-compliance, but also the subject matter of the order breached and the consequences of further non-compliance (Oro Negro Drilling at [73]). In particular, the court should consider whether further non-compliance would prejudice the proper administration or adjudication of the proceedings, having regard to the purpose of the order breached (see [25]–[26] above). Moreover, the court is not invariably bound to impose the least onerous possible sanction in an unless order (Tan Tse Haw at [41]).

[46] In the present case, Mr Smith has already been afforded a real opportunity to furnish security. DR Teo made the order on 22 July 2026, ordering Mr Smith to furnish $15,000 in security within 21 days. However, Mr Smith has failed to do so notwithstanding that more than three months have passed since the order was made. The Applicant only took out the present application on 17 September 2026, after the deadline for compliance had expired. In these circumstances, it cannot be said that Mr Smith has not been afforded a real opportunity to furnish security. As correctly submitted by the Applicant, this clearly distinguishes the present situation from Sun Electric, where the AR considered it appropriate to first afford the plaintiff an opportunity to furnish security before imposing an unless order. Instead, the present application is consistent with the course contemplated by the AR, namely that the defendant may subsequently apply to strike out the claim if the claimant fails to furnish security within the stipulated period.

[47] I am also not satisfied that Mr Smith has provided a satisfactory explanation for his continued failure to furnish security. Mr Smith relies on his bank statements and IRAS records to demonstrate his limited financial means. However, as the Applicant points out, the bank statements only disclose the balances in five Singapore bank accounts and do not provide a complete picture of his financial circumstances. Several matters in Mr Smith’s own affidavits reinforce this concern:

(a) First, Mr Smith states that in early February 2026, he made at least 13 enquiries about possible apartment rentals in Singapore, identifying a variety of properties in different parts of Singapore, including AMO Residence, Normanton Park, Q Bay Residences and The Poiz Residences. It is curious how he could afford the rent in these condominiums if he is truly impecunious as claimed.

(b) Second, although Mr Smith states that his stay in Vietnam is a temporary measure to manage his limited resources, and that medical costs there are approximately one third of those in Singapore, he provides no satisfactory account of how he funds his living expenses there.

(c) Third, Mr Smith states that he remains employed as the Executive Director of Saugeen Consulting Pte Ltd, but claims that he has drawn no salary or other employment income since 1 January 2025. However, he has not provided any confirmation from the company or other documentary evidence to substantiate this assertion.

[53] For the foregoing reasons, I grant an order in terms of Prayer 1.

(a) The reasons why the outstanding costs orders were made. Where the costs were occasioned by the claimant’s unsuccessful applications, breach of court orders, abuse of process or other misconduct during the litigation, this may weigh in favour of a more serious sanction (H M Luqman at [63(a)]; Beech Hill Capital Limited v Lucas Duplan & Ors [2026] EWHC 1390 (Comm) (“Beech Hill”) at [33(iv)(a)–(b)]).

(b) The amount of the outstanding costs relative to the value and nature of the claim. Where the outstanding costs are substantial in comparison with the value of the claim, this may weigh in favour of imposing an order that the claimant satisfy the outstanding costs as a condition of continuing the proceedings (H M Luqman at [63(b)]).

(c) The degree of the claimant’s culpability in failing to satisfy the costs orders. In this regard, the court should consider the reasons for the non-payment, whether the claimant has provided a satisfactory explanation, and whether his conduct demonstrates a deliberate or contumelious disregard of the court’s orders (H M Luqman at [63(c)]; Beech Hill at [33(iv)(d)] and [33(vi)]).

(d) Whether the claimant has satisfactorily substantiated any assertion that he lacks the financial means to satisfy the outstanding costs orders. In this regard, the claimant should provide detailed, cogent and full and frank disclosure of his financial position and his prospects of raising the necessary funds (Siddiqi at [30(iii)]; J Robbins Capital at [21]–[24] and [31]; Beech Hill at [33(iv)(e)]).

(e) The prejudice to the defendant arising from the non-payment, including the unfairness of requiring the defendant to continue incurring costs in defending the claim while the claimant remains in default (H M Luqman at [63(d)]).

(f) Whether the claimant has made genuine efforts to satisfy the costs orders, including by making partial payment, offering instalments or proposing other reasonable arrangements (H M Luqman at [63(e)]).

(g) The degree of connection between the outstanding costs orders and the claim which the claimant seeks to pursue. Where the costs orders arose from the same proceedings or related proceedings involving the same parties, this would weigh in favour of imposing an appropriate condition on the claimant’s continued prosecution of the claim (Beech Hill at [33(iv)(f)]).

[76] It remains for me to commend both Mr Smith and counsel for the Applicant, Mr Chong, for their clear and measured submissions despite the protracted dispute between both sides.

The claimant in person;

Chong Yew Meng, Luke (Anglo Law Chambers LLC) for the defendant.