Case Summaries

Ho Soo Fong v Revitech Pte Ltd [2018] SGCA 82

SUPREME COURT OF SINGAPORE

26 November 2018

Case Summary

Ho Soo Fong v Revitech Pte Ltd [2018] SGCA 82
Court of Appeal Originating Summons No 9 of 2018

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Decision of the Court of Appeal (delivered by Judge of Appeal Tay Yong Kwang):

Outcome: CoA gives its reasons for dismissing an application for extension of time to appeal on the basis that the putative appeal would have no prospect of success.

Introduction

1 The applicant was a director and shareholder of Ho Pak Kim Realty Pte Ltd (“HPK”). HPK was the plaintiff in an action against Revitech Pte Ltd (“Revitech”) in Suit No 36 of 2006 (“S 36/2006”). On 2 August 2010, following the determination of liability in S 36/2006, the High Court ordered costs to Revitech on its counterclaim. It also ordered that, in the event HPK was unable or unwilling to pay Revitech costs when taxed or agreed, Revitech would be at liberty, after giving due notice to the applicant, to make him pay such costs personally (“the Costs Order”) on the basis that he was the alter ego and moving force behind HPK.

2 On 24 May 2017, the applicant filed Originating Summons No 563 of 2017 (“OS 563”) seeking to be added as a party to S 36/2006 and to set aside the Costs Order. OS 563 was heard and dismissed by the High Court on 29 January 2018.

3 About a month after the time to appeal against OS 563 had lapsed, the applicant applied to the Court of Appeal for an extension of time to appeal against the High Court’s dismissal of OS 563. The Court of Appeal dismissed the application.

The Court of Appeal’s decision

4 On the facts of the case, the primary consideration in deciding whether to grant the extension of time was whether the applicant’s intended appeal against the dismissal of OS 563 was so hopeless that granting the extension of time would be an exercise in futility. In the Court of Appeal’s view, the intended appeal against OS 563 had no chance of success: at [15].

5 The applicant’s main contention was that he had not been given an opportunity to address the court on 2 August 2010 before the Costs Order was made. He claimed that he only became aware of the Costs Order on 23 August 2016. However, this could not be correct:

a The applicant would have instructed HPK’s counsel at the costs hearing on 2 August 2010 and did not allege that his then counsel failed to inform him of the Costs Order after it was made: at [17].

b The applicant was aware of the Costs Order by 11 July 2014 at the latest. On that date, he represented HPK in a hearing before the Court of Appeal regarding whether the Costs Order, which had been suspended pending the assessment of damages in S 36/2006, should be reinstated. At this hearing, the applicant addressed the Court of Appeal on why he should not be made personally liable for costs: at [17], [18].

c On at least three further occasions after 11 July 2014, the applicant had the opportunity to ventilate his case on the Costs Order before the Court of Appeal. There could therefore be no doubt that the applicant had been heard on the same issue several times. Indeed, many of the grounds raised before the Court of Appeal appeared to have similarly been raised before the Court of Appeal on those prior occasions: at [18].

6 OS 563 was merely another attempt to re-open the proceedings in S 36/2006 and the Court of Appeal’s decision on the Costs Order. Such matters had long been concluded. The High Court was therefore entirely justified in dismissing OS 563. The applicant’s appeal against the dismissal of OS 563 would ultimately be a non-starter. Accordingly, the Court of Appeal refused to grant the extension of time: at [19].

7 As the applicant was the subject of a vexatious litigant order, he had to obtain leave from the High Court to continue proceedings in OS 563 and to pursue his appeal against the High Court’s dismissal of the same. The applicant submitted that since he had succeeded in obtaining such leave, OS 563 could not be an abuse of process and had a prima facie chance of success. However, those applications had been made ex parte and the court’s attention was not brought to the fact that the applicant had previously addressed the Court of Appeal on multiple occasions on the merits of the Costs Order. Had the full history of the proceedings been brought to the court’s attention, leave might not have been granted. In those circumstances, the applicant could not rely on the ex parte proceedings as evidence of the merits of his proposed appeal from OS 563: at [21].

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.

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