5 – Appearance and default judgement

1.1 Appearance................................................................................................................................................1
1.1.1 Who to enter appearance...............................................................................................................................................2
1.1.1.1 Individuals..............................................................................................................................................................2
1.1.1.2 Persons under disability.........................................................................................................................................2
1.1.1.3 Companies and associations..................................................................................................................................3
1.1.2 How to enter appearance...............................................................................................................................................7
1.1.3 Challenging court’s jurisdiction.......................................................................................................................................8
1.1.3.1 Contention 1 - D contends that court does not have jurisdiction.........................................................................8
1.1.3.2 Contention 2: D contends that even if court has jurisdiction, this is an application to court not to exercise its
jurisdiction as Singapore is not the proper forum for the dispute..........................................................................................9
1.1.3.3 Loss of right to challenge.....................................................................................................................................10
1.1.3.4 Other circumstances to get stay proceedings: D relies on ADR agreement – Arbitration or mediation............13

1.2 Judgment in default.................................................................................................................................14

1.2.1 Entering judgment in default + circumstances when judgement can be obtained.....................................................14
1.2.2 Setting aside judgment in default.................................................................................................................................15
1.2.2.1 Regular judgment.................................................................................................................................................15
1.2.2.1.1 Merits of defence...........................................................................................................................................15
1.2.2.1.2 Other considerations that can override the dominant consideration...........................................................19
1.2.2.2 Irregular judgment...............................................................................................................................................21

1.1 Appearance

Appearance: By entering an appearance, the defendant signifies his intention to formally respond to the claim made
against him. He officially places himself on the court record and, by doing so, is able to take the necessary steps to
protect his position in the proceedings.  he does not need to enter appearance if he intends to settle the case
immediately.
 If the defendant has not admitted liability or otherwise responded to the opportunity for settlement presented in the
writ of summons, he may enter an appearance (O 12 rr 1-4).
 Once the defendant enters an appearance, he may challenge the claim or contest the court’s jurisdiction or contend
that the court should not exercise jurisdiction on the basis that Singapore is not the appropriate forum for the
adjudication of the dispute (O 12 r 7(1) and (2)).
 If the defendant fails to enter an appearance in time, he faces judgment in default (this is effected administratively).
The judgment may be set aside (O 13 r 8). He has 8 days/21 days (for abroad) to enter an appearance, a judgement
in default of appearance can be obtain against him – he can get a judgement of default (O12 r 4)
 If the defendant wishes to expedite the service of the writ so that he may enter an appearance and take
consequential steps, he must make the necessary application for this purpose (O 12 r 8).
Purpose of appearance: to respond and challenge claim (most cases); to contest jurisdiction of Singapore court or to

1
contest Singapore as the proper forum for the dispute. [s16 of the SCJA]
Subsidiary Principles [Pinsler PCP Chapter 6]
1. If the defendant has not admitted liability or otherwise responded to the opportunity for settlement presented in
the writ of summons, he may enter an appearance.
2. Once the defendant enters an appearance, he may challenge the claim or contest the court’s jurisdiction or contend
that the court should not exercise jurisdiction on the basis that Singapore is not the appropriate forum for the
adjudication of the dispute.
3. If the defendant fails to enter an appearance in time, he faces the prospect of a judgment in default.
4. If the defendant wishes to expedite the service of the writ so that he may enter an appearance and take
consequential steps, he must make the necessary application for this purpose.

1.1.1 Who to enter appearance

1.1.1.1 Individuals

Individuals (who are not persons under disability) may enter appearance and defend action by solicitor or O 12 r 1(1)
in person
 Subject to paragraphs (2) and (2A) and O 76 r 2, a defendant to an action begun by writ may enter an
appearance in the action and defend it by a solicitor or in person (whether or not he is sued as a
trustee, as a personal representative or in any other representative capacity).

1.1.1.2 Persons under disability

Persons under disability must enter appearance and defend action by a litigation representative, who O 76 r 2
must act by a solicitor
 A person under disability may not defend in any proceedings except by his litigation representative. (O
76 r 2(1))
 Subject to these Rules, anything which in the ordinary conduct of any proceedings is required or
authorised by a provision of these Rules to be done by a party to the proceedings shall or may, if the
party is a person under disability, be done by his litigation representative. (O 76 r 2(2))
 A litigation representative of a person under disability must act by a solicitor. (O 76 r 2(3))

Persons under disability include minors O 76 r 1(1)

(a)
 “Person under disability” means (inter alia) a person who is a minor.

 A minor who has attained the age of 18 years and who is not otherwise under any legal disability: Civil Law
o May, in his own name and without a litigation representative, bring, defend, conduct or intervene Act, s 36(1)
in any legal proceeding or action specified in the Schedule as if he were of full age; and (s 36(1)(a))
o Shall not be considered to be a person under disability on account of his age for the purpose of
any such legal proceeding or action, or for the purpose of any written law regulating the limitation
of actions. (s 36(1)(b))

 Any legal proceeding or action arising from or in connection with a contract to which the minor is a Civil Law
party and which, by virtue of s 35 (contracts of minors who have attained 18 years of age), has effect Act,
as if the minor were of full age. (para 1) Schedule
 Any legal proceeding or action arising from or in connection with the minor acting as:

2
 o a director of a company; or (para 2(a))
o a manager of a limited liability partnership. (para 2(b))
 Any legal proceeding or action arising from or in connection with a bill of exchange that has been
drawn or indorsed —
o by the minor; or (para 3(a))
o by another person in favour of the minor. (para 3(b))
 Where the minor is registered under the Business Names Registration Act 2014 to carry on any
business (whether as a sole proprietor or in partnership with one or more other persons), any legal
proceeding or action arising from or in connection with his carrying on of such business. (para 4(a))
 Where the minor carries on business in Singapore as a limited partnership registered under the
Limited Partnerships Act 2008 (Act 37 of 2008) (whether as a general partner or a limited partner):
o any legal proceeding or action arising from or in connection with his carrying on of such business;
or (para 5(a))
o any legal proceeding or action arising from or in connection with his acting as a person
responsible for the management of such business (as defined in section 39(2) of that Act). (para
5(b))

 Except as otherwise provided by this section…a contract entered into by a minor who has attained the Civil Law
age of 18 years shall have effect as if he were of full age. (s 35(1)) Act, s 35
 The following contracts shall not, by virtue of subsection (1), have effect as if the minor were of full
age:
o any contract for the sale, purchase, mortgage, assignment or settlement of any land, other than a
contract for a lease of land not exceeding 3 years; (s 35(4)(a))
o any contract for a lease of land for more than 3 years; (s 35(4)(b))
o any contract whereby the minor’s beneficial interest under a trust is sold or otherwise transferred
to another person, or pledged as a collateral for any purpose; and (s 35(4)(c))
o any contract for the settlement of:
 any legal proceedings or action in respect of which the minor is, pursuant to any
written law, considered to be a person under disability on account of his age; or (s
35(4)(d)(i))
 any claim from which any such legal proceedings or action may arise. (s 35(4)(d)(ii))

Persons under disability include persons without mental capacity O 76 r 1(1)

(b)
 “Person under disability” means (inter alia) a person lacking capacity. (O 76 r 1(1)(b))
 “Person lacking capacity” means a person who lacks capacity within the meaning of the Mental
Capacity Act in relation to matters concerning his property and affairs. (O 76 r 1)

 A person lacks capacity in relation to a matter if he is unable to make a decision for himself in relation Mental
to the matter at the material time because of an impairment of or a disturbance in the functioning of Capacity
the mind or brain. Act, s 4(1)

1.1.1.3 Companies and associations

Companies must enter appearance and defend action by solicitor unless: (1) company authorises officer to O 12 r
act on its behalf and (2) court grants leave 1(2)
 Subject to Order 1, Rule 9(2) and any other written law, and except in accordance with any practice
directions for the time being issued by the Registrar, a defendant to an action begun by writ which is a
body corporate may not enter an appearance in the action or defend it otherwise than by a solicitor. (O

3
 12 r 1(2))
 The Court may, on an application by a company or a limited liability partnership, give leave for an officer
of the company or limited liability partnership to act on behalf of the company or limited liability
partnership in any relevant matter or proceeding to which the company or limited liability partnership is
a party, if the Court is satisfied that:
o the officer has been duly authorised by the company or limited liability partnership to act on behalf
of the company or limited liability partnership in that matter or proceeding; and (O 1 r 9(2)(a))
o it is appropriate to give such leave in the circumstances of the case. (O 1 r 9(2)(b))

Association must enter appearance and defend action by solicitor unless: (1) association authorises officer O 12 r
to act on its behalf and (2) court grants leave 1(2A)
 Subject to Order 1, Rule 9(3) and any other written law, and except in accordance with any practice
directions for the time being issued by the Registrar, a defendant to an action begun by writ which is an
unincorporated association (other than a partnership) may not enter an appearance in the action or
defend it otherwise than by a solicitor. (O 12 r 1(2A))
 The Court may, on an application by an unincorporated association (other than a partnership or a
registered trade union), give leave for an officer of the unincorporated association to act on behalf of
the unincorporated association in any relevant matter or proceeding to which the unincorporated
association is a party, if the Court is satisfied that:
o the officer has been duly authorised by the unincorporated association to act on behalf of the
unincorporated association in that matter or proceeding; and (O 1 r 9(3)(a))
o it is appropriate to give such leave in the circumstances of the case. (O 1 r 9(3)(b))

Officer O 1 r 9(6)
 “Officer”:
o in relation to a company, means any director or secretary of the company, or a person employed in
an executive capacity by the company; (O 1 r 9(6)(a))
o in relation to a limited liability partnership, means any partner in or manager of the limited liability
partnership; (O 1 r 9(6)(b))
o in relation to an unincorporated association (other than a partnership or a registered trade union),
means the president, the secretary, or any member of the committee of the unincorporated
association. (O 1 r 9(6)(c))
 Officer must be authorised.
 Must be appropriate to give leave.
o Is it a case in which a lay person can represent the company? Eg, are the facts or is the law too
technical or complicated?
o Even if the officer is authorised, is there some consideration which is adverse to his representation
(eg, conflicts with shareholders or lack of competence or lack of familiarity with issues)?
o Is it just for company to be represented by its officer (eg, straightforward case, company is
financially constrained, the officer is capable and would be an effective representative)?
Factors outlined in the case: Held: (-) Leave not granted. Bulk
Trading
 The court should adopt a neutral starting position towards application under O 1 r 9(2) without
(2014)
necessarily being predisposed one way or the other (to grant or not to grant leave). [44c], [79] The court
SGHC
should consider all relevant factors and come to a reasoned determination where there is sufficient
reason to grant leave. [80]
 There is tension between two policy concerns: [84] to secure greater access to justice, and to ensure

4
 that the administration of justice is not impeded or prejudiced through the conduct of litigation by
untrained and undisciplined persons. [85] The court should take into account not just the interests of
the (applicant), but also the interests of the other parties, as well as the proper and efficient
administration of justice. [86]
 Factors:
o Financial position of the company:
 (Whether the company has) access to financial resources to engage legal representation [93]
o Bona fides of the application:
 The bona fides of the application is at the very least questionable. The primary “defence” the
officer has repeatedly indicated is that the dispute should be referred to arbitration, but no
substantive particulars have been given, the company has admitted liability and paid
compensation, the company ignored a notice of arbitration, the company cannot afford
arbitration. [97–99]
o Role of the company in the proceedings:
 That the court should be more willing to grant leave where the company is D, since the
company is effectively before the court involuntarily, makes sense. [100–101] However, it does
not mean that the court is reluctant to grant leave simply because the company is P. [101]
o Structure of the company:
 It should be relevant that the proposed representative is the sole shareholder or is effectively
the embodiment of the company. The analogy with an individual litigant-in-person is
particularly compelling. [103]
 However, this may run contrary to other factors, eg where the officer will also have to be a
witness. [104]
o Complexity of the factual and legal issues:
 The court must consider whether the company representative would be able to offer
assistance in the determination of the issues. This would require an examination of whether
the representative is sufficiently competent to understand and comply with the obligations
attendant to such representation. [105]
o The merits of the company’s case:
 If it is clear that the company’s case is clearly unarguable, there would seem little point in
allowing the company to act through an officer, solely for the purpose of having its futile day in
court. [109]
o The amount of the claim:
 Whether the claim is for a large or small amount should not in itself be a relevant
consideration. [110]
 However, such a factor may be relevant when considered in conjunction with other factors,
such as the role of the company in the proceedings, the company’s financial position and the
complexity of the issues. [111]
o Competence of the proposed representative:
 Inevitably a lay representative’s lack of familiarity with the law will lead to some additional
delay and inconvenience. However, that is a natural consequence of allowing litigation to be
conducted in person, and should not within reason be held against P. [112]
 The competence of the representative must be weighed in the context of the complexity of
the issues before the court. The quality of the candidate (is also relevant), eg if the
representative is an in-house counsel, or is legally qualified though no longer in practice. [113]
The court should examine whether the representative is able to understand and comply with
the court’s orders and directions. [114]
 A representative is unlikely to be a suitable candidate if he is an undischarged bankrupt,

5
 experiences language difficulties, or is ordinarily resident in a different jurisdiction. [116]
 That representative should function effectively as an officer of the court. If he has shown
himself rude, uncooperative or prone to making scandalous submissions, it would not be
appropriate to grant leave. [116]
o Credibility of the proposed representative:
 Adverse findings may have been made against the proposed representative in other courts.
[117]
 The credibility of the representative assumes a different significance if he is required to act
both as a witness and as counsel. [118]
 Whether the proposed representative is also a party to the proceedings is a relevant factor. It
would be appropriate to grant leave if they adopt a common or substantially similar stand. It
would be inappropriate to grant leave if differing or contradictory positions are adopted, as it
would place him in an untenably irreconcilable conflict of interest. [119]
o Stage of the proceedings:
 Different considerations may apply depending on the stage of the proceedings. [120]
 The fact that an action has proceeded to an advanced stage can be a material factor in favour
of granting leave. Eg if the company ceased trading and ran out of funds to expend on further
legal representation, to refuse leave would adversely impact on the company’s access to
justice. [121]
 Imposition of conditions when granting leave:
o D sought the imposition of 3 conditions, [124] which are fair and reasonable, and would be
consistent with the need to take into account the interests of D: [125]
 The officer should be ordered to provide his contact details. [124a]
 The officer should provide an undertaking to be responsible for the payment of legal costs
should it be ordered against the company. [124b]
 The officer should disclose his assets in Singapore sufficient to meet his potential exposure to
any adverse cost orders. [124c]
 Interim order:
o The court may consider to limit the representation up to a certain stage of the proceedings,
particularly when the court is not sure about the level of the representative’s competence to assist
the court in the conduct of the proceedings. [125]

Held: Leave not granted. Allergan

(2015)
Factors:
SGHC
 Financial position of the officer:
o Where there is a live issue relating to the lifting of the corporate veil, the financial position of the
relevant shareholders may be an important consideration. [63]
 Complexity of the legal issues:
o Some of the issues of law engaged are technical (eg similarity of marks, likelihood of confusion,
tarnishment and injury by association, defences to trade mark infringement). [65]
 Competence of the proposed representative:
o The officer does not appear to have legal training. Furthermore, notwithstanding the clear direction
to the officer, the affidavit comprised a good deal of irrelevant material. [66]

Facts: Company appointed an NSW solicitor as director 1 month before the application. Elbow
Holdings
Held: Leave not granted.
Pte Ltd v

6
Factors: Marina
Bay
 Bona fides of the application:
Sands Pte
o O 1 r 9(2) is not a special corridor for foreign lawyers to circumvent the LPA and enter to represent
Ltd
parties in our courts. [13] The proposed representative is not an officer of the company who
[2015]
happens to be a lawyer. He is primarily a foreign lawyer who has been advising the company in this
action. This fact remains regardless of his motivations or charitable arrangements. [14]
 Role of the company in the proceedings:
o The difference lies in the court’s sympathy for an impecunious D which is dragged into litigation.
But this is not such a case (D was Marina Bay Sands). [16]

Facts: P sued D1 (company) for price of goods, and D2 (officer) and D3 (officer’s wife) as guarantors. Metal
(2016)
Held: Leave not granted.
SGHC
Factors:
 Complexity of the legal issues:
o Even if the officer is able to represent the company on the facts, he may not be able to represent
the company adequately on the legal issues and the complexities that may arise at trial. [8]
 Credibility of the proposed representative:
o On the face of it, the officer and the company have the common aim of ensuring that the
company’s defence succeeds. However, divergent interests would arise if the defence fails, as the
officer would be personally liable as guarantor. This would put the officer squarely in a potential
conflict of interest. [8]

1.1.2 How to enter appearance

Enter appearance by completing and handing in at Registry the memorandum of appearance and a copy O 12 r
1(3)
An appearance is entered by properly completing a memorandum of appearance, as defined by Rule 2, and
a copy thereof, and handing them in at the Registry.

Memorandum of appearance is request to Registry to enter appearance: A memorandum of appearance is O 12 r

a request to the Registry to enter an appearance for the defendant or defendants specified in the 2(1)
memorandum.

Memorandum of appearance to be filed through EFS: Where a document is required to be filed with, O 63A r
served on, delivered or otherwise conveyed to the Registrar under any other provision of these Rules, it 8(1)
must be so filed, served, delivered or otherwise conveyed using the electronic filing service in accordance
with this Order and any practice directions for the time being issued by the Registrar.

Memorandum of appearance to be in Form 10  see below for contents O 12 r

2(2)

Content of memorandum of appearance A memorandum of appearance must specify: O 12 r

2(3)
 In the case of a defendant appearing in person, the address of his place of residence and, if his place of
residence is not within the jurisdiction or if he has no place of residence, the address of a place within the
jurisdiction at or to which documents for him may be delivered or sent; and (O 12 r 2(3)(a))
 In the case of a defendant appearing by a solicitor a business address of his solicitor within the
jurisdiction, and where the defendant enters an appearance in person, the address within the jurisdiction
specified under sub-paragraph (a) shall be his address for service, but otherwise his solicitor’s business
7
 address shall be his address for service. (O 12 r 2(3)(b))

Endorsement on writ of summons : Within [8/21 – for abroad] days after the service of this Writ on you, you Form 2
must either satisfy the claim or cause an appearance to be entered for you using the electronic filing service
and in default of your doing so the Plaintiff(s) may proceed with the action and judgment may be entered
against you without further notice.
 (If writ is endorsed with statement of claim) If the defendant enters an appearance, then he must also
serve a defence on the solicitor for the plaintiff within 14 days after the last day of the time limited for
entering an appearance, otherwise judgment may be entered against him without further notice.
 (If claim for debt or liquidated demand only) And $ [] (or such sum as may be allowed on taxation) for
costs, and also, if the plaintiff obtains an order for substituted service, the further sum of $ [] (or such
sum as may be allowed on taxation). If the amount claimed and costs be paid to the plaintiff or his
solicitor [] days after service hereof, further proceedings will be stayed.

Time limited for appearing : 8 days if writ served within jurisdiction, 21 days if writ served out of O 12 r 4
jurisdiction, unless extended
 References in these Rules to the time limited for appearing are references:
o In the case of a writ served within the jurisdiction, to 8 days after service of the writ or, where that
time has been extended by or by virtue of these Rules, to that time as so extended; and (O 12 r 4(a))
o In the case of a writ served out of the jurisdiction, to 21 days after service of the writ as provided for
in Order 10, Rule 2 or Order 11, Rule 2, or to such extended time as the Court may otherwise allow.
(O 12 r 4(b))

1.1.3 Challenging court’s jurisdiction

Purpose of appearance: to respond and challenge claim (most cases); to contest jurisdiction of Singapore O 12
court or to contest Singapore as the proper forum for the dispute. The appearance procedure stems from Pinsler
the principle of engagement (see Topic 1). slides
By entering an appearance, the defendant not only avoids the risk of a judgment in default being entered Pinsler
against him, he is also presented with various grounds on which to resist the action PCP 6.003
Info: Jurisdiction is typically founded upon the court having made an order granting the plaintiff leave to
serve the originating process on the foreign defendant abroad (an “overseas service leave order”), and the
plaintiff having thereafter effected such service of the originating process. Hence, any attempt by a foreign
defendant to challenge the existence of the Singapore courts’ jurisdiction over him will usually entail his
making an application to set aside the overseas service leave order.

Appearance does not constitute waiver, as the entry of an appearance is a precondition to such an O 12 r 6
application, it does not constitute waiver of any irregularity
The appearance by a defendant in an action shall not be treated as a waiver by him of any irregularity in the
writ or service thereof or in any order giving leave to serve the writ out of the jurisdiction or extending the
validity of the writ for the purpose of service.
 Defendant may wish to challenge writ or its service because of irregularity or because Singapore not the
right forum.
 In most cases the dispute on the merits, this is a small instance of such cases. This assures that defendant
enters appearance it does not restrict his right to challenge the jurisdiction of the court

8
 1.1.3.1 Contention 1 - D contends that court does not have jurisdiction

A foreign defendant who has been sued here and who does not want to submit to the jurisdiction of the O 12 r
Singapore courts may enter an appearance and then seek to dispute the existence of the Singapore 7(1)
courts’ jurisdiction in any of the ways enumerated in O 12 r 7(1) of the Rules of Court  he contends that
the court has no jurisdiction to adjudicate because of legal impediment or irregularity
Any attempt by a foreign defendant to challenge the existence of the Singapore courts’ jurisdiction over
him will usually entail his making an application to set aside the overseas service leave order under 1(c).
Disputing that the court has jurisdiction  challenge the actual jurisdiction of the courts.
 A defendant who wishes to dispute the jurisdiction of the Court in the proceedings by reason of any such
irregularity as is mentioned in Rule 6 or on any other ground shall enter an appearance and within the
time limited for serving a defence apply to the Court for:
o an order setting aside the writ or service of the writ on him; (O 12 r 7(1)(a))
o an order declaring that the writ has not been duly served on him; (O 12 r 7(1)(b))
o the discharge of any order giving leave to serve the writ on him out of the jurisdiction; (O 12 r 7(1)(c))
o the discharge of any order extending the validity of the writ for the purpose of service; (O 12 r 7(1)
(d))
o the protection or release of any property of the defendant seized or threatened with seizure in the
proceedings; (O 12 r 7(1)(e))
o the discharge of any order made to prevent any dealing with any property of the defendant; (O 12 r
7(1)(f))
o a declaration that in the circumstances of the case the Court has no jurisdiction over the defendant in
respect of the subject-matter of the claim or the relief or remedy sought in the action; or (O 12 r 7(1)
(g))
o such other relief as may be appropriate. (O 12 r 7(1)(h))
eg. He wasn’t properly served or leave to serve writ, basically something wrong with the procedure of service
hence court doesn’t have jurisdiction, or when the order granting leave have problem eg. Full and frank
disclosure, or court wrongly grant leave where Registrar never follow a HC precedent.
Burden of proving: It is for the defendant who seeks relief under one of the limbs under rules 7(1)(a) to 7(1)
(h) to establish his right to it. However, if the defendant contends that the method of service was irregular,
it is for the plaintiff to establish that all the requirements pertaining to service have been complied with.
This position may be justified on the basis that compliance with the conditions of service is a fundamental
obligation of the plaintiff.
As the defendant is contesting the jurisdiction of the court pursuant to Order 12 rule 7(1) of the Rules of
Court, he is not considered to have submitted to the jurisdiction by reason of the act of entering an
appearance. However, if no order is made on the application or it is dismissed, the defendant would be
deemed not to have made the application, in which case he will be regarded as having submitted to the
jurisdiction of the court. Our key here is the jurisdiction and exercise of that jurisdiction

 An application…must be made by summons supported by an affidavit verifying the facts on which the O 12 r
application is based and a copy of the affidavit must be served with the summons. 7(3)

 The Court may make such order as it thinks fit and may give such directions for its disposal as may be O 12 r
appropriate, including directions for the trial thereof as a preliminary issue. 7(4)

With regards to whether overseas is a more proper jurisdiction For purpose of O 12 r 7(1), You can argue Tutorial
that this was not a proper case for service out of Singapore because the case has a stronger connection with
9
France. For the purpose of O 12 r 7(2), can you argue that Singapore is not the proper forum question

1.1.3.2 Contention 2: D contends that even if court has jurisdiction, this is an application to court not to exercise its
jurisdiction as Singapore is not the proper forum for the dispute

The foreign defendant can then argue that even if jurisdiction exists, then it should not be exercised on O 12 r
the grounds that Singapore is not the “proper forum” for the trial of the action against him.- although the 7(2)
court has jurisdiction, it should not exercise it because Singapore is not the proper forum for the dispute
 A defendant who wishes to contend that the Court should not assume jurisdiction over the action on
the ground that Singapore is not the proper forum for the dispute shall enter an appearance and, within
the time limited for serving a defence, apply to Court for an order staying the proceedings.

Eg. Forum non conveniens: discretionary power that allows courts to dismiss a case where another court, or Pinsler
forum, is much better suited to hear the case. PCP 6.009
Why SG not the proper forum? These might include significant juridical disadvantages in the foreign forum, Spiliada
the potential prejudice that the plaintiff may suffer there, or other circumstances which might, as a matter Maritime
of justice, clearly override the natural connection between the dispute and that forum. The main v
consideration is whether substantial justice can be obtained in the foreign jurisdiction. The court exercises Cansulex 
particular sensitivity in making this determination as it is reluctant to judge the competence or
independence of another country’s judiciary.

[Same procedure as O12 r7(1)] An application…must be made by summons supported by an affidavit O 12 r

verifying the facts on which the application is based and a copy of the affidavit must be served with the 7(3)
summons.

The Court may make such order as it thinks fit and may give such directions for its disposal as may be O 12 r
appropriate, including directions for the trial thereof as a preliminary issue. 7(4)

Should D succeed - Court has power to stay proceedings SCJA, s

18(2)
 (SGHC has) Power to…stay proceedings…where by reason of multiplicity of proceedings…or by reason of
read with
a court in Singapore not being the appropriate forum the proceedings ought not to be continued.
First
Schedule,
para 9

1.1.3.3 Loss of right to challenge

D must be treated as submitting to court’s jurisdiction if D enters appearance but does not make O 12 r 7(6)
application: Except where the defendant makes an application in accordance with paragraph (1), the
appearance by a defendant shall…be treated as a submission by the defendant to the jurisdiction of the
Court in the proceedings.

Pursuant to O 12, r 7(1) [ONLY, not 7(2)]. Pinsler

Slides
 D may waive right to contend that court does not have jurisdiction by acting inconsistently before
making application (by taking steps in the proceedings)
o Eg, by filing a defence or making an application for relief such as security for costs or an injunction
or other acts involving the merit of the case
o This is very strict: because such action^, because eg. by making an application for relief, he is

10
 admitting that the court does has jurisdiction by taking those steps
 Whether a litigant has submitted to the jurisdiction of the court is relevant only to an application for a stay
under O 12 r 7(1) (because the litigant is taking the position that the court has no jurisdiction to hear the
case).
 In contrast, where the litigant applies for a stay under O 12 r 7(2) on the ground of forum non conveniens
or pending suit in another jurisdiction, he in fact accepts the court’s jurisdiction and is merely asking the
court not to exercise it. Therefore, any steps he takes in the proceedings will not compromise his
application based on case law, it doesn’t constitute waive.

For r7(2) D does not waive right to contend that court should not have jurisdiction even by acting Chan Chin
inconsistently before making application (as D accepts court’s jurisdiction and is merely applying for a stay) Cheung
Therefore, any steps he takes in the proceedings will not compromise his application (2009)
SGCA
Facts: P sued D. D filed defence before applying for stay of proceedings. – r7(2) app
Held: (+) Application for stay allowed.
 Although D is required to enter an appearance and to make an application within the time limited for
serving a defence, this timeline is not really as absolute as it appears on the face of it (citing Pinsler) [15]
and can be extended. [16]
 P argues that an extension of time cannot cure the fact that D had already taken steps in the
proceedings and submitted to the jurisdiction of the Singapore courts. This argument is off the mark:
o Whether a litigant has submitted to the court’s jurisdiction is relevant only to an application for a
stay under O 12 r 7(1), where the litigant is taking the position that the court has no jurisdiction to
hear the case.
o Where the litigant applies for a stay under O 12 r 7(1) on the ground of forum non conveniens, he in
fact accepts the court’s jurisdiction and is not to be treated as disputing it. [22]
 Respondents, having filed the defence, applied for stay of Singapore proceedings until outcome of
Malaysian proceedings.
o Writ served: 31/8/2007. Defence served: 19/10/2007 (file defence before apply for stay, quite a
serious breach of the rule because 6 months)
o Application for stay: 25/4/2008
 CA: Stay pending the outcome of the Malaysian proceedings had been properly granted by HC despite
filing of defence and delay. Pinsler PCP
The Court of Appeal concluded that a step in the proceedings (such as the service of the defence or other at 6.013
act involving the merits of the case) could constitute a submission to the jurisdiction of the court which
would be wholly inconsistent with an application to challenge that jurisdiction pursuant to Order 12 rule
7(1) of the Rules of Court.

As for an application for stay under rule 7(2), a step in the proceedings would not have the same
significance as the defendant in this scenario accepts the jurisdiction of the court: he is merely asking the
court not to exercise it on the basis that Singapore is not the proper forum [22] However, the point may be
made that as the defendant is contending that the proceedings should not be pursued in Singapore , the
serving of his defence or other action which challenges the plaintiff’s case in the Singapore proceedings
could be viewed as inconsistent with an application under rule 7(2). The wording of this paragraph
certainly anticipates that the application will be made prior to any other act being taken

CA in Chan Cheung: No. Court has discretion to extend time. This was affirmed in Sun Jin where there is Sun Jin
(2011)

11
delay of seven weeks Courts not applying r7(2) very liberally. SGCA
^ As seen from the rule, If a step in the action does not per se amount to waiver of the defendant’s right
for relief pursuant to rule 7(2), significant delay in making this application for stay may have this effect
 R 7(2): “… shall enter an appearance and, within the time limited for serving a defence, apply to Court
for an order staying the proceedings.”  Is this Mandatory requirement to apply before serving
defence? (because the rule is quite clear on that)
Facts: P sued D. D filed defence before applying for stay of proceedings.
Held: (+) Application for stay allowed.
 The question of whether D could be taken, by virtue of his lateness in applying for a stay of the
Singapore action, to have waived his right to make such an application was not raised by the parties. All
we wish to say in this regard is that a lengthy delay in making a stay application (ie beyond the time limit
for serving a defence) may be treated as a waiver of any objections which might have been raised (citing
Pinsler). We will make no further comment on this issue. [46]
 CA states that the issue of whether the defendant had waived his right to apply for stay because of long
delay was not raised ([46]). Would decision have been different if point raised?  Court may have
allowed for it, but in case it was shorter delay
**Note: These 2 cases are on rule 7(2), if rule 7(1) it will definitely constitute a waiver

**KEY FALLBACK OPTION:** Not uncommon for defendant to file concurrent applications under rule 7(1) Zoom
and 7(2).  D can say writ not properly served, hence court has no application. Even if court have (2014)
jurisdiction, Singapore not the proper forum SGCA
A foreign defendant who does not want his dispute with the plaintiff to be heard here and who wishes to
add a second string to his bow by concurrently seeking a stay of proceedings on improper forum grounds
runs the risk that his conduct may be taken to amount to a submission to the jurisdiction of the Singapore
courts.
Facts: P sued D for money due under hire-purchase agreements. P applied ex parte for leave under O 11 to
serve writ in India, D entered appearance + files summons with 2 prayers, under O 12 r 7(1) and O 12 r 7(2).
- Appellant applied to set aside the service, attacking the existence of jurisdiction. He also applied in the
alternative to stay the proceedings.
Held: Application for stay not allowed (albeit because it was assessed that Singapore was proper forum,
not because D submitted to Singapore court’s jurisdiction).
 Registrar and High Court Judge: As D had made an application under O 12 r 7(2) and presented
arguments in court on this ground, it had submitted to the jurisdiction and could no longer contest
jurisdiction under O 12 r 7(1). SGCA disagreed.
 Court ruled that there is nothing wrong with this practice if the r 7(2) application is a fall back
application should the r 7(1) application fail. Also the filing of concurrent applications is justified by the
same period for the application under r 7(1) and 7(2) (“within the time limited for serving a defence”).
 Key is that the Burden of proof is different under r 7(1) and (2): [EA doesn’t apply to interlocutory
proceedings but sometimes the court do discuss the BOP in specific situations]
o Recall o11  service out of jurisdiction r2 is that it must be a proper case for service out of
Singapore (Singapore is proper forum?
o Eg, D applies under r 7(1)(a) to set aside the writ that has been issued against D or its service on D
on the basis that it was not a ‘proper case’ for service out of Singapore. The issue of whether
Singapore is the proper forum would be determined under r 7(1)(a). The burden of proof would be

12
 on P to show that Singapore is the proper forum, even if D made the application  because P
obtained leave from the court and therefore he should have shown proper case out of jurisdiction
o If D applies under r 7(2), D would have to prove that Singapore is not the proper forum (burden of
proof would be reversed).  because D is the one that is service was proper but he is applying now
to show SG not proper forum
Quotes:
 Submission to jurisdiction:
o It is a question of fact in each case whether there has been a submission (to the jurisdiction of the
local court). [32]
o Where a foreign D puts forward an application for a stay of proceedings on improper forum grounds
as a fall-back to an application for an overseas service leave order to be set aside, it would generally
not be appropriate to infer that he has submitted to the jurisdiction of the local court. [32] Where
these two sets of arguments are presented in the alternative, they fall to be considered in a
cascading sequence. Where this sequence of analysis is applicable, the making of a stay application
on improper forum grounds as a fall-back would not prejudice the primary application challenging
the existence of the Singapore courts’ jurisdiction. [45]
 Double prayer:
o On the point of whether Singapore is the proper forum, the test applied is substantively the same as
that applied in considering whether a stay of proceedings on improper forum grounds should be
granted. It follows that if the leave order is not set aside, then a stay of the Singapore action would
not be granted, unless the stay application can be mounted on a different factual basis. Here, no new
issues can possibly have arisen, principally because the prayers were filed at the same time. [30]
o What is different is that the burden of proof is reversed. [77] The burden of proving that Singapore is
the proper forum lies on P. [71] But where the Singapore courts do have jurisdiction, the foreign D
who wishes to seek a stay of proceedings on improper forum grounds has the burden of proving
what he asserts. [72]
o As the timelines (for O 12 r 7(1) and O 12 r 7(2)) are the same, a foreign D might well see an
advantage in seeking both reliefs at the same time. But this does not thereby render this practice a
sound strategy in every case. [47] It is in fact wholly unnecessary and likely counter-productive for a
foreign D who does not wish to have his dispute with P tried in the local court to make both a
jurisdictional challenge and a stay application based on the same material. [79] In any event, as a
matter of practice, the local court will collapse the issue of the proper forum into one question
considered in the round. [80]
Summary:
(a) A foreign defendant who disputes the existence of the Singapore courts’ jurisdiction under O 12 r 7(1)
and also applies for a stay of proceedings on improper forum grounds under O 12 r 7(2) will generally not
be taken to have submitted to the jurisdiction of the Singapore courts provided the latter application for a
stay is made as a fall-back to the jurisdictional challenge. [Ie, stay application as alternative ground.]
(b)   Due to the timelines laid down in the Rules of Court, it may seem advisable for both a challenge to
the existence of the Singapore courts’ jurisdiction [r7(1)] and an application for a stay of proceedings on
improper forum [r7(2)] grounds to be made concurrently, albeit with the appropriate reservation that the
stay application needs to be dealt with only if the jurisdictional challenge fails. [Subject to CA’s
observations in [30] and [47].]*
(c)    A foreign defendant who applies for a stay of proceedings on improper forum grounds without also
contesting the existence of the Singapore courts’ jurisdiction will ordinarily be taken to have submitted to

13
jurisdiction (Chan Chin Cheung v Chan Fatt Cheung [2010] at [22]).

As for an application for stay under rule 7(2), a step in the proceedings would not have the same Pinsler PCP
significance as the defendant in this scenario accepts the jurisdiction of the court: he is merely asking the 6.013
court not to exercise it on the basis that Singapore is not the proper forum.
However, the point may be made that as the defendant is contending that the proceedings should not be
pursued in Singapore, the serving of his defence or other action which challenges the plaintiff’s case in the
Singapore proceedings could be viewed as inconsistent with an application under rule 7(2). The wording of
this paragraph certainly anticipates that the application will be made prior to any other act being taken. If
the step in the action does not per se amount to waiver of the defendant’s right for relief pursuant to rule
7(2), significant delay in making this application may have this effect

1.1.3.4 Other circumstances to get stay proceedings : D relies on ADR agreement – Arbitration or mediation

Stay of proceedings in favour of ADR

 As in the case of a foreign jurisdiction clause or other forum non conveniens situation, the court is merely being asked
not to exercise its jurisdiction in the face of an arbitration clause.
 The proceedings are not brought to an end but continue in a different form.
The court will stay the court proceedings if there is a valid arbitration agreement and the applicant (ie, the defendant)
intends ‘to do all things necessary to the proper conduct of the arbitration’. (Arbitration Act, s 6(2))

Stay of proceedings in favour of domestic arbitration Arbitration

Act, s 6(1)
 Where any party to an arbitration agreement institutes any proceedings in any court against any
other party to the agreement in respect of any matter which is the subject of the agreement, any
party to the agreement may, at any time after appearance and before delivering any pleading or
taking any other step in the proceedings, apply to that court to stay the proceedings so far as the
proceedings relate to that matter.

Stay of proceedings in favour of international arbitration International

Arbitration
 Where any party to an arbitration agreement to which this Act applies institutes any proceedings in
Act, s 6(1)
any court against any other party to the agreement in respect of any matter which is the subject of
the agreement, any party to the agreement may, at any time after appearance and before delivering
any pleading or taking any other step in the proceedings, apply to that court to stay the proceedings
so far as the proceedings relate to that matter.

Stay of proceedings in favour of mediation Mediation

Act, s 8(1)
 Where any party to a mediation agreement institutes any proceedings before a court against any
other party to that agreement in respect of any matter which is the subject of that agreement, any
party to that agreement may apply to that court to stay the proceedings so far as the proceedings
relate to that matter.

1.2 Judgment in default

Same principles apply to judgments in default of appearance and judgments in default of defence. If the defendant
does not enter an appearance within the prescribed period, the plaintiff may, on fulfilment of the prescribed conditions
(and without the leave of the court), enter judgment in default against the defendant subject to certain exceptions.

14
1.2.1 Entering judgment in default + circumstances when judgement can be obtained

Judgment in default of appearance to writ with claim for liquidated demand O 13 r 1(1)
 Where a writ is endorsed with a claim against a defendant for a liquidated demand only, then, if that
defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter
final judgment against that defendant.

Judgment in default of appearance to writ with claim for unliquidated damages O 13 r 2

 Where a writ is endorsed with a claim against a defendant for unliquidated damages only, then, if that
defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter
interlocutory judgment against that defendant for damages to be assessed.
 you don’t know damages, you don’t have a fixed claim but claiming for damages generally.
 Not final because damages yet to be assessed. Not a final judgement for liability

Conditions for entry of judgment in default of appearance to writ O 13 r 7(1)

 Judgment shall not be entered against a defendant under this Order unless a request to enter
judgment in Form 79A is filed with the judgment in Form 79.

Procedure = [Plaintiff’s solicitor certifies] that: Form 79A,

para 1
 The writ has been duly served on the defendant; and (para 1(a))
 No appearance has been entered by the defendant. (para 1(b))

Requirement of notice for entry of judgment in default (FOR PRACTITIONERS) LPPCR, r 28

 A legal practitioner (A) must not enter a default judgment under any provision of the Rules of Court
(Cap. 322, R 5) against a party who is represented by another legal practitioner (B), unless:
o A has given B written notice of A’s intention to enter the default judgment; and (r 28(1)(a))
o At least 2 working days have elapsed after the notice is given to B. (r 28(1)(b))
 Any notice under paragraph (1) that is given on a working day after 4pm, or on a day other than a
working day, is to be treated as given on the next working day. (r 28(2))
 To avoid doubt —
o This rule does not extend the time stipulated by an order of court, or by any provision of the Rules
of Court, for taking any action or step; and (r 28(3)(a))
o A legal practitioner need not give any notice under paragraph (1) before taking any action or step
on a failure to comply with an order of court within the time stipulated by the order of court. (r
28(3)(b))
 In this rule, “working day” means any day other than a Saturday, Sunday or public holiday. (r 28(4))
Note: Applies only if both parties are represented. This is an ethical rule governing lawyers, not a
procedural rule applying to parties.
 This is an ethics rule. Notice requirement as a matter of courtesy  need written notice by intention to
enter default judgement. Last step measure to ask D to enter appearance. Hence this is an ethics
rather than procedural rule. Only applies where practitioner acts for both parties
 To defray costs if D applies later on to set aside

1.2.2 Setting aside judgment in default

The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of O 13 r 8

15
this Order.  discretion-based
 Reason: this is not a judgement on merits but rather due to D not entering appearance. This is an
administrative judgement and P can get anything he wants

Procedure
Application by summons and affidavit.

Depends on whether it is a regular judgment vs irregular judgment

 Regular [complies with procedure] or (b) Irregular [eg. Amount judgement is higher than in writ or default entered
before expiry of 8 days + notice must be given]
 O 13 r 8 makes no distinction between setting aside regular and irregular judgments. Need to look at case law.

1.2.2.1 Regular judgment

Regular judgment: Basis for setting aside is that judgment is not justified by the merits. No issue of irregularity because
judgment is regular.
 Eg. Got a defence even if haven’t entered appearance in time --> wasn’t aware of the writ

 The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or Evans
by consent, it is to have the power to revoke the expression of its coercive power where that has only (1937)
been obtained by a failure to follow any of the rules of procedure. (480) (Lord Atkin) UKHL
Note: D should not lose its substantive rights by reason of a default judgment simply because it has failed to

enter an appearance. D is prevented from putting forward his case, Here might want to consider the orb of
justice to set aside the default judgement, although there is no case

Paragraph: A regular judgement in default may be set aside if the applicant raises an issue which “ought to be
adjudicated” and the court is satisfied there are no improprieties in his conduct barring him from pursuing his
defence The rationale is that until a court has offers a judgement based on merits or by consent, it should have
power to revoke the judgement. However, a contention lies in the applicable standard for the merits of the
applicant’s defence which allows him to succeed in his application.

1.2.2.1.1 Merits of defence

What kind of case should D show? – Dominant consideration

Approach 1: Arguable or triable issue (lower threshold) Evans

(1937)
 Where the judgment was obtained regularly there must be an affidavit of merits, meaning that D must
UKHL
produce to the Court evidence that he has a prima facie defence. (480) (Lord Atkin)
 The primary consideration is whether D has merits to which the Court should pay heed; if merits are
shown the Court will not prima facie desire to let a judgment pass on which there has been no proper
adjudication. Here D clearly shows an issue which the Court should try. (489) (Lord Wright)
 The judge (should) consider whether any useful purpose could be served by setting aside the
judgment. Obviously, no useful purpose would be served if there were no possible defence to the
action. (482) (Lord Russell) His Lordship also pointed out that the applicant would ordinarily need to
Pinsler
show “how it came about that [he] found himself bound by a judgment regularly obtained, to which he
PCP
16
 could have set up some serious defence. The words “serious defence” (which are consistent with Lord 10.005
Atkin’s expression, “prima facie defence”) mean that it must not be a fanciful defence or a facade but
a case which raises a real issue or valid basis of contention which affects the merits. If the applicant
has a valid basis on which to challenge the plaintiff’s claim, the obvious purpose of setting aside the
judgment would be to ensure that there is proper adjudication on the merits at trial
A close examination of their respective speeches reveals a consistent principle: if the defendant can raise a
defence or an issue in contention which would affect adjudication on the merits at trial, it would be just
(subject to other considerations) to set aside the judgment.
Nowhere in any of these pronouncements is there any indication that the applicant must establish that he
is likely to succeed in challenging the plaintiff’s claim or that his case has a particular degree of force over
and above an arguable case on the merits. It is sufficient that the applicant raises one or more issues of
contention which justify a trial on the merits. The question is whether the case should be tried, not
whether the applicant has a sufficiently strong case to win at trial.

 D need only show a defence which discloses an arguable or triable issue. (555) (Lord Denning MR) Burns
(1971)
EWCA

 For the purpose of setting aside a default judgment, the defence on the merits which D is required to Singapore
show need only disclose an arguable or triable issue. [21] Gems
(1992)
Note: Court did not consider The Saudi Eagle.
SGHC

What is the evidence necessary for establishing an arguable or triable issue? Example: Bank sues X Pinsler
(guarantor) on guarantee and obtains default judgment. X applies to set aside judgment. lecture
slides 44
Possible hypotheses: - examples
 X simply states in affidavit that he did not understand the terms. No supporting evidence. > unlikely to
succeed in getting it set aside
 X states in affidavit that he did not understand the terms. His friend (who was with X at the time)
confirms this in a letter which is attached to X’s affidavit. > it depends on whether friend is credible or
not, or friend can be cross-examined via an application
 X attaches affidavit of specialist that he is educationally subnormal and would not have understood
terms of guarantee. > very likely would have meet the test above, would have even met the real prospect
test

C.F Approach 2: Real prospect of success (higher threshold) - had the effect of requiring the defendant to The Saudi
satisfy an inappropriately strict standard in order to succeed on his application to set aside the default Eagle
judgment. A defendant who is asking the court to exercise its discretion in his favour should show that (1986)
he has a defence which has a real prospect of success. EWCA
They reasoned that it is illogical to require same standards for obtaining leave to defend under O14 and
displacing the regular judgement of the courts under O13 and correspondingly the rights acquired by the
plaintiff from the judgement. Thus, having some degree of conviction in his defence is insufficient. A
reasoned assessment must yield the conclusion that a probable outcome of success can be achieved at
trial. This standard is arguably higher than in Evans because it is insufficient that a defence with some
validity constitutes a real prospect of success.
 If (the phrase “an arguable case”) is used in relation to setting aside a default judgment, it does not

17
 accord with the standard in Evans. (The UKHL) clearly contemplated that D who is asking the Court to
exercise its discretion in his favour should show that he has a defence which has a real prospect of
success. (223)
 Key reasoning: It would be surprising if the standard required for obtaining leave to defend (a
summary judgment) were the same as that required to displace a regular judgment (in default) and
with it the rights acquired by the plaintiff. Therefore, to arrive at a reasoned assessment of the justice
of the case, the Court must form a provisional view of the probable outcome if the judgment were to
be set aside and the defence developed. The “arguable” defence must carry some degree of
conviction. (223)
o There must be a distinction between O14 Summary judgement cases – since Pf has a really strong
case, it can get summary judgement. D can show triable issue. But in the case of setting aside
judgement, Pf already have judgement in default and he has rights of property hence to displace
that you need a higher standard
 Bearing in mind that in matters of discretion, no one case can be authority for another, the following
general indications help the Court in exercising the discretion:
o A judgment signed in default is a regular judgment from which, subject to (ii) below, the plaintiff
derives rights of property; (223)[i]
o The Rules of Court give to the Judge a discretionary power to set aside the default judgment
which is in terms unconditional and the Court should not lay down rigid rules which deprive it of
jurisdiction; (223)[ii]
o The purpose of this discretionary power is to avoid the injustice which might be caused if
judgment followed automatically on default; (223)[iii]
o The primary consideration is whether the defendant has merits to which the Court should pay
heed, not as a rule of law but as a matter of common sense, since there is no point in setting aside
a judgment if the defendant has no defence and if he has shown merits the Court will not, prima
facie, desire to let a judgment pass on which there has been no proper adjudication; (223)[iv]
o Again as a matter of common sense, though not making it a condition precedent, the Court will
take into account the explanation as to how it came about that D found himself bound by a
judgment regularly obtained to which he could have set up some serious defence. (223)[v] (Sir
Roger Ormrod)

 The guiding principles (for exercising discretion in an application to set aside a judgment entered Hong
in default) have been summarised in The Saudi Eagle. [60] Leong
(1992)
SGHC

 The principles upon which the court should exercise its discretion under O 13 r 8 are: Abdul
o It is not sufficient to show merely an arguable defence that would justify leave to defend under O Gaffer
14 (triable or arguable case) ; it must both have a real prospect of success and carry some degree (1994)
of conviction; and [17a] SGCA
o If proceedings are deliberately ignored, this conduct, although not amounting to an estoppel at
law, must be considered in justice before exercising the court’s discretion to set aside the default
judgment. [17b]
This concerns conduct of D to evade liability. the Court of Appeal was concerned with the conduct of the
defendant in deliberately ignoring service of the writ and allowing the judgment in default of
appearance to be entered. The court adopted the position taken in The Saudi Eagle by holding that such
conduct “must be considered in justice” when determining whether a judgment should be set aside. This
phrase was too vague to be useful because it did not address prioritisation in the relationship between the

18
substantive merits of the defendant’s case and his non-compliance with the rules of procedure.

Criticism of Approach 2 Position in SG: Still open. Unfortunately, the Saudi Eagle test was applied by the Singapore
courts without objective consideration in 1992 and governed proceedings here for a period of 16 years until the Court
of Appeal in Mercurine Pte Ltd v Canberra Development, a case involving an irregular judgment, observed that it should
no longer be applied. As the Court of Appeal had previously ruled in Abdul Gaffer bin Fathil v Chua Kwang Yong that the
Saudi Eagle test applied in Singapore, it is necessary to undertake a survey of the developments which resulted in the
development of a new principle.
In subsequent cases, the High Court, following the lead of the Court of Appeal in Abdul Gaffer, appeared to take into
account the merits of the applicant’s defence and his defaults or misconduct in a general balance of “equities” or
“justice” between the parties.

Held: The
Ruben
 If (in The Saudi Eagle) Sir Roger Ormrod was intending to say that the Court must do its best to predict
(1987)
the outcome of the action if the judgment is set aside, and should only set aside a judgment if it is
EWHC
satisfied that the outcome of the action will be a judgment in favour of D on a better than 50-50
chance, then that statement goes beyond the law as it has been laid down in the authorities. But I
doubt whether Sir Roger Ormrod was intending to say that. (624) (Hobhouse J)

(Facts: Irregular judgment.) Mercurin

e (2008)
 In deciding whether to set aside a regular default judgment, the question for the court is whether D
SGCA
can establish a prima facie defence in the sense of showing that there are triable or arguable issues.
[60]
 It is rather illogical to hold that the test for setting aside a regular default judgment should be any
stricter than that for obtaining leave to defend (a summary judgment). In both instances, there has
been no hearing on the merits. This is not to say that the position in both instances is completely
identical or symmetrical. When a regular default judgment has been entered, there would have been a
prior default or lapse on the part of D. There are, however, other means of dealing with such
procedural default or lapses, including the imposition of adverse costs orders. [60]
 It is rather unfortunate that the existing case law has caused problems in practice because of the
different expressions adopted by judges who were faced with rather different factual matrices. It
would be better if the differences in language in these cases could be viewed as the emphasis given in
a particular case to the particular facts of that particular case. [64]
Note 1: It is for D to “establish”; must produce evidence.
Note 2: Strictly speaking, Abdul Gaffer is ratio while Mercurine is only dicta. But when the Court of Appeal
decides to change previous law even through obiter comments, they can be highly persuasive (even
though, according to the strict law of precedent, the previous decision is more authoritative). This is clear
from several post-Mercurine authorities which support the principles in Mercurine (eg. IBM v Beans)
EV: Mercurine is more persuasive because the courts astutely observed that the “arguable or triable
issue” test in Evans was an accurate reflection of the rationale underpinning the exercise of the court’s
discretionary power to set aside the default judgement: courts should be disinclined to allow judgement
to be passed without the merits of the case being argued conclusively before it(at[58]). It would be
unjust to deprive the defendant the opportunity to challenge the plaintiff’s case at trial

The phrase “real prospect of success” is ambiguous. If it means that the defence has some validity as Pinsler
opposed to being fanciful and unrealistic, then this approach would be consistent with the speeches of the PCP

19
House of Lords in Evans. If, however, “real” is construed to the effect that the applicant must, in addition 10.008 –
to raising an issue which justifies adjudication at trial, establish that he has a good case or is likely to 10.010
succeed at trial, this goes beyond the pronouncements of their Lordships in Evans. In The Saudi Eagle, the
Court of Appeal favoured the latter interpretation as indicated by its statement that a determination must
be made as to whether the applicant will succeed at trial: “… to arrive at a reasoned assessment of the
justice of the case the court must form a provisional view of the probable outcome if the judgment were
to be set aside and the defence developed”. It is not sufficient to raise an “arguable defence” for the
defence “must carry some degree of conviction”. Therefore, according to the court, the applicant must
establish more than a defence or issue which should be adjudicated: he must raise a defence which is
likely to succeed at trial.

The approach in The Saudi Eagle is inconsistent with the speeches in Evans and is inherently problematic
(Mercurine at [58])
 The approach in Saudi Eagle is not free from difficulty. In the first place, a “real prospect of success”
requires the court to evaluate on the basis of evidence in affidavits and allegations in pleadings.. This
task may be compromised by the inconclusiveness of the affidavits, and allegations in the pleadings
which have yet to be substantiated by evidence tested on oath. Hence, this is not ideal because
adjudicating the merits should be the function of a trial judge and not a judge on the interlocutory
application
 Secondly, it may be unjust to deprive a defendant who can raise a genuinely triable issue (as opposed
to a sham defence) of his opportunity to challenge the plaintiff’s case at trial. In Saudi Eagle Shipping, the
[English] Court of Appeal sought to justify the distinction between the standard required to displace a
regular judgment in default, and that applicable to resist an application for summary judgment, on the
basis that in the former situation an actual judgment of the court has been obtained, and with it, the
rights of property acquired by the plaintiff. This distinction may be far less significant when one
considers that in both situations the defendant is seeking to avoid early judgment without trial (whether
summary or by default). Accordingly, if the defendant is able to raise a triable issue which might prevent
judgment at trial, the default judgment should not be allowed to stand (in the same way, summary
judgment would not be granted in these circumstances) … No doubt, where the defendant is responsible
for the default judgment, and seeks to inconvenience the court by applying to set it aside, the court’s
displeasure may be expressed by penalising him in costs and by imposing appropriate conditions as part
of its order.
o This reasoning is flawed: because the distinction of standards between the exercise of the court’s
power in O13 and O14 is incorrect when considering that both seeks to refrain from an early
judgement without trial, hence should be grounded in the same test (mercurine at [58])

1.2.2.1.2 Other considerations that can override the dominant consideration

Court will not only consider merits of defence (Facts: Irregular judgment.) Mercurin
e (2008)
 The merits of the defence do not constitute the sole consideration that a court takes into account in
SGCA
deciding whether to set aside a regular default judgment. While this factor is certainly highly significant
in its own right, it also has to be assessed against other relevant considerations – at the end of the day, a
balancing exercise is involved. [65]

**Position Following Mercurine: Pinsler

PCP
 The merits of the defence are the primary consideration for the court which must be taken into account

20
 together with other considerations (subsidiary though they may be) in determining whether it is just to 10.019,
set aside the judgment. 10.021
 These other considerations include the reasons why the default judgment was entered and the
applicant’s explanation for this outcome, whether there was any delay (including its degree) in
making the application and any other circumstances which should be assessed in reaching a just
decision. If the applicant has deliberately withheld filing his application in order to obtain some
advantage in the litigation, the application will, in the words of the Court of Appeal in Mercurine,
“prima facie be viewed uncharitably”.
o It is fair to say that the defendant takes a risk of failing in his application if he conducts his case
irresponsibly or unfairly or in a manner which disregards the interests of the administration of
justice
 With regard to delay, the Court of Appeal stated: “A long delay may not be procedurally incurable or
fatal to a setting aside application”. Ultimately, it is a question of whether the delay is inexcusable
(notwithstanding the explanation offered) on the facts presented to the court. The court will also
consider the impact of the applicant’s conduct on the opposing party, particularly if the latter would
suffer injustice if the judgment is set aside (see below for facts)
EV: K Rajah JA’s formulation of principles in Mercurine suggests that Lee Theng Wee and Ang Kim Soon could
be decided in the same way today. It may well be that a future court faced with the same conduct will
regard it as sufficiently serious to deny the applicants any relief even in the face of clear merits. These may
be cases in which the subsidiary considerations have a significance which outweigh the primary
consideration of substantive merits. The Court of Appeal cited both decisions without criticism and held Ang
Kim Soon up as a paradigm example of cases “where the defendant’s conduct calls for the court to be less
than ready to exercise its setting-aside jurisdiction”. His Honour reiterated the opposing tenets that
“procedural rules must not occasion injustice by unfairly depriving a party of an opportunity to argue its
case” and “the indolent cannot as a matter of course be awarded the same measure of justice as the
diligent”.

 Whether there is a defence on the merits is the dominant feature to be weighed against D’s explanation Su Sh-
both for the default and for any delay, as well as against prejudice to P. [43] Hsyu
(2007)
SGCA

Court will also consider D’s conduct

 Was failure to enter appearance unintended or intended?
 Explanation for failure.
 Delay in application to set aside
Other conduct: eg, whether defendant lied or told the truth in his affidavit

Facts: D applied to set aside a default judgment more than 3 years after it was entered. SGHCR dismissed Lee
the application. Theng
Wee
Held: (-) Application dismissed.
(2003)
 It may be that D would have had some prospect of success in (one of his allegations). [17] SGHC
 On the other hand, I also took into account the following:
o The very long delay by D in applying to set aside the judgment. [17a]
o That there was no valid reason for the very long delay. [17b] . Indeed, Tay had made part payments
after judgment had been entered against him to persuade Lee not to proceed with the first

21
 bankruptcy proceeding and his present application was made only because the third statutory
demand had been issued against him.
o D had not been truthful in his supporting affidavit on various aspects. [17c]
 In the circumstances, the equities or justice of the case were clearly not in D’s favour. [18]
Note: May or may not be similarly decided after Mercurine, given its facts. This is a case where he had raised
an arguable issue  might succeed at trial but because his behaviour was so bad “extremely long delay”, it
overrides the merits of the claim. If to reoccur after Mercure, the result will be the same, because of the
balancing test. Orb of justice at work  equities or justice… substantive justice will demand that the
judgement will be upheld. Need to look at whether this case can be distinguished

Should court also consider interests of administration of justice?

 It’s a lot of work to apply for default judgment, enter default judgment, apply to set aside default judgment, set aside
default judgment.
 You can’t have multiple Ds declining to enter appearance then apply to set aside default judgement. It will cause a lot
of delay in court processes.
In summary: court is to apply a balancing approach: i) D raise triable issue ii) conduct of D can override the fact that he
has an arguable case but it is rare. **Look at the extent of all the conduct in the cases
Consider orb of justice principle (UOB) – see below procedures to ensure no injustice caused: eg. If party behaves in a
way that will not entitled him to remedy regardless of merit due to particularly egregious conduct

Option 1: Court may set aside default judgment but punish D through costs = Defendant will also have to Nanyang
pay costs as his failure to enter an appearance in time resulted in the default judgment. Law
(2010)
Facts: D applied to set aside a default judgment. SGHCR did not set aside default judgment.
SGHC
Held: Default judgment set aside, but no order as to costs made.
 While the justice of the case required that D be allowed an opportunity to be heard on its defence, I was
disinclined to allow D its costs in the appeal. [29] D should have realised from the hearing before the AR
that several of its assertions were not borne out by the facts (and should not have been repeated them).
[26]
 Although the High Court set aside the judgment, it took into account several instances of unfair or
irresponsible conduct on the part of the defendant and denied it the costs of the appeal.

Option 2: Court may set aside default judgment but grant conditional leave to defend (conditional on IBM
provision of security) (2011)
SGHC
Facts: D was unresponsive to invoices, letters of demand or writ. D only applied to set aside a default
judgment 1 day before the hearing of P’s application to make an unless garnishee order ( this is an
enforcement mechanism to go against money of a judgement debtor) absolute. SGHCR set aside default
judgment but granted conditional leave to defend, on the condition that D provide security for amount of
P’s claim by way of banker’s guarantee or solicitor’s undertaking.
Held: Default judgment set aside (for part of claim), but conditional leave to defend granted.
 For D to neither dispute nor challenge the numerous invoices sent by P, but to raise fresh allegation just
before P’s judgment was to be executed by a garnishee order absolute, called into serious question the
bona fides of its defence. [20] It was clear that D’s conduct was such as to give an overall impression that it
had no basis for its purported defence. [21] > so that the plaintiff sure that if got judgement after the trial
he will be paid by the 3P – a bank

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 This is another case where the court set aside the judgement but nevertheless imposed specific conditions,
previous case it was the cost and it will depend on the circumstances as to what the court will do

1.2.2.2 Irregular judgment

Irregular judgment
 Non-compliance with the rules, examples:
o Failure to comply with conditions for entering judgment;
o Judgment may have been entered before the time limited for entry of appearance has expired;
o In the case of a liquidated claim, it may be entered for an excessive amount or amount which is different to that
stated in the writ/statement of claim.
 Court has broad discretion in deciding how to respond to the irregularity. It may:
o Set aside judgment ex debito justitiae (as of right); > out of debt to justice, as a matter of justice because it is
wrong and has an error in it
o Allow judgment to stand subject to amendment.

Stands for the proposition that if the defendant is “bound to lose” the case, the judgment should stand Faircharm
(1998)
 If Ds are bound to lose on a subsequent application for summary judgment, it would be pointless to
EWCA,
set aside the existing judgment. Lex non cogit ad inutilia (the law does not compel one to useless
approved
things).
in
Mercurine
(2007)
SGHCR [13]

Starting point is ex debito justitiae rule. Court will also consider: (1) whether egregious breach of Mercurine
procedural rules by P or D, and (2) whether D bound to lose (very low threshold) (2008)
SGCA
Facts: D applied to set aside a default judgment about rental arrears and possession of the premises in
respect of a lease 15 months after it was entered . It was irregular because: (1) P mistakenly indicated
larger amount than he was entitled to and (2) P failed to comply with conditions for entry of judgment
because the plaintiff failed to obtain a certificate (required by Order 13 rule 4(1) of the Rules of Court)
Held: Set aside. SGCA ruled that the defendant had given satisfactory reasons for not making its
application sooner. It also concluded that as the irregularities did not result in egregious procedural
injustice to the defendant, the default judgment should not be set aside ex debito justitiae. Furthermore,
the defendant had not suffered prejudice as a result of the plaintiff’s breach of Order  13 rule 4(1) and the
claim for the excessive amount (the defendant did not dispute that it owed a certain sum to the plaintiff.
The court ordered that “the default judgment as a whole would be deemed to be set aside if [the
defendant] succeeds in the consolidated suit”.
 The rule that D is entitled to set aside an irregular default judgment ex debito justitiae (the ex debito
justitiae rule) [67] should continue to be the starting point vis-à-vis setting aside applications involving
irregular default judgments, as the expectation that litigants should observe procedural rules cannot
be lightly compromised. [74]
o D needs to establish the irregularity, whether factual or legal. Once D discharges this burden,
the legal burden falls on P to show why the judgment should not be set aside. [98]
 The key question for the court, when it decides whether to adhere to or depart from the ex debito
justitiae rule, is whether there has been such an egregious breach of the rules of procedural justice
as to warrant the setting aside of the irregular default judgment as of right. [76] P will want to prove

23
 that this rule does not apply maybe because he had not committed an egregious procedural misdeed
o The court should consider, inter alia:
 The nature of the irregularity, in particular, whether it consists of:
 Entering a default judgment prematurely; or [76a(i)]
 Failing to give D proper notice of the proceedings; [76a(ii)]
 Whether D took a fresh step in the proceedings after becoming aware of the irregular default
judgment; [76b]
 Whether there was any undue delay by D in filing its setting-aside application; and [76c]
 Where a judgment is irregular because of P’s breach of procedural rules, whether the breach
was committed in bad faith. [76d]
o The court will be particularly ready to set aside an irregular default judgment where the judgment
was entered prematurely or where D had no notice of the proceedings against him, as there are
plain instances of injustice that offend the essence of due process.
o Where the procedural injustice occasioned to D is not egregious, the court will generally be less
inclined to adhere strictly to the ex debito justitiae rule, especially if D has taken a fresh step in
the proceedings after becoming aware of the irregular default judgment.
o D’s undue delay in filing its setting-aside application, although potentially prejudicial, is not
invariably fatal. [76]
o The court may take into account, among other factors:
 The blameworthiness of the respective parties (eg undue delay on D’s part in making its
setting-aside application); [96a]
 Whether D has admitted liability under the default judgment; and [96b]
 Whether D would be unduly prejudiced if the irregular default judgment is allowed to stand.
[96c]
o Procedural rules must not occasion injustice by unfairly depriving a party of an opportunity to
argue its case. On the other hand, the indolent cannot as a matter of course be awarded the same
measure of justice as the diligent. [35]
 The Faircharm approach: Where an irregular default judgment is not set aside as of right, it may still
be set aside on some other basis. One of the most crucial factors is the merits of the defence.
o The burden lies on P to show that D is bound to lose even if the irregular judgment is set aside
and the matter re-litigated.
o The “bound to lose” test properly reflects the different policy considerations which feature where
D seeks to set aside an irregular default judgment as opposed to a regular default judgment. In an
irregular default judgment, there would in most cases have been procedural injustice occasioned
by an act of P. To avoid prejudice to D, the less exacting standard ought to apply. [92]
o The main concern that has been expressed about Faircharm is the possible erosion of the
defendant’s right to raise its defence. Also courts should be alert to the potential abuse of the
default judgement procedure, for there is a risk that the plaintiff may get away with entering a
default judgment prematurely and thereby obtain judgment in its favour earlier than it could have
done if it had taken out an O 14 application against the defendant
o The rationale of the principle is that it would be purposeless to set aside a judgment and permit
the proceedings to continue despite the inevitable outcome against the defendant. According to
the Court of Appeal in Mercurine, Faircharm “is in line with the goal of efficient case and resource
management that [the] courts continuously strive towards”.
 Should the court ultimately decide not to set aside the irregular default judgment, the judgment will
be upheld subject to:
o Any variation which the court may make to cure the irregularity; and/or [93a]
 If, from the affidavits and exhibits, the court concludes that, even though there were

24
 irregularities in the writ or the judgment, the substantive content of the judgment is right,
the court will not set the judgment aside. The only effect would be to put the parties to
further expense and delay to reach a regular judgment for the same amount. (Eg. In the case
of BCCI v Habib - the defendant, via the affidavits which it filed for its setting-aside
application, had tacitly conceded that it owed the plaintiff a certain sum of money that was
not much lower than what was originally awarded in the summary judgment) – See whether
courts can cure any error by ordering the appropriate amendments pursuant to Order 13
rule 8 and Order 2 rule 1(2) of the Rules of Court
 Pursuant to Order 13 rule 8, the court may “vary any judgment entered” and make its order
“on such terms as it thinks just”. Order 2 rule 1(2) permits the court, inter alia, to amend the
judgment “on such terms as to costs or otherwise
 It is the same in principle for (an irregularity as to) the amount. The court will vary the
judgment to the correct amount. [94]
o Any terms which the court may impose. [93b]
o The Court of Appeal stated that it would not be appropriate for it to go to the next stage of
actually considering the merits (if any) of the defence (ie, the bound to lose test) because of the
impact its comments could have on the pending trial of the consolidated suit (concerning related
issues in dispute). It did point out that if the defence to the claim for possession of the premises
was not bound to fail, the possession order would ordinarily have been set aside. The money
judgment would have been upheld on the basis of the Faircharm test as the defendant was clearly
bound to lose to the extent of the amount it admitted to be due. The judgment could have been
amended to reflect the proper amount. However, as the possession order and money judgment
were not severable and the defence applied to both claims, the court ordered that “the default
judgment as a whole would be deemed to be set aside if [the defendant] succeeds in the
consolidated suit”.
 Delay:
o Despite a long delay before the filing of the setting-aside application, the court retains a discretion
to set aside an irregular judgment provided it was satisfied that:
 No one had suffered prejudice by reason of D’s delay; [36a]
 If such prejudice had been sustained, it could be met by an appropriate order as to costs; or
[36b]
 It would constitute oppression to let the judgment stand. [36c] The greater the delay, the
more cogent the explanation must be. Instead of “oppression”, it might be preferable to
state that D may need to show that a miscarriage of justice would be occasioned. [36]
o Here, D’s conduct was explicable, because:
 D’s delay was not merely strategic. D did not stand to gain from making a late setting-aside
application. [40a]
 D was under the impression (from contradicting letters) that it had negotiated a compromise
with P, and it intended to honour that agreement, as evidenced by its payment of the
compromise sum to P. [40b]
 D’s explanation that it was trying to find an out-of-court settlement in view of the interests of
the ultimate shareholders that the parties had in common was plausible and appeared to
dovetail with the objective facts. [40c]
 On the facts, there was certainly no intention to delay the application in order to obtain
some benefit in the case. There was also evidence that the defendant believed that it had
negotiated a compromise with the plaintiff and that it intended to honour this agreement.
Furthermore, the defendant satisfactorily explained that it was seeking to settle the case out
of court in the interests of the ultimate shareholders which both parties had in common. The

25
 fact that the defendant had made its own application to the court for declarations regarding
the parties’ settlement negotiations and related matters did not detract from this finding.

26