Nomura v Ethical Investments: Extension of Time for Appeal & Forfeiture of Shares

In Nomura Regionalisation Venture Fund Ltd v Ethical Investments Ltd, the Court of Appeal of Singapore heard an appeal regarding the High Court's decision to grant Ethical Investments Ltd an extension of time to serve a notice of appeal. The underlying dispute concerned Ethical Investments' failure to pay the second installment for shares subscribed in Nomura, leading to a claim for specific performance or damages. The court dismissed Nomura's appeal, finding that the High Court judge had not erred in exercising her discretion to grant the extension, considering the reasons for the delay, the lack of prejudice to Nomura, and the arguable merits of Ethical Investments' appeal against the forfeiture of shares.

1. Case Overview

1.1 Court

Court of Appeal of Singapore

1.2 Outcome

Appeal dismissed.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

The Court of Appeal addressed an extension of time to serve a notice of appeal and the potential forfeiture of shares due to payment default.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Nomura Regionalisation Venture Fund LtdAppellantCorporationAppeal DismissedLost
Ethical Investments LtdRespondentCorporationExtension of Time GrantedWon

3. Judges

Judge NameTitleDelivered Judgment
Chao Hick TinJustice of AppealYes
L P TheanJustice of AppealNo

4. Counsels

Counsel NameOrganization
Ang Cheng HockAllen & Gledhill
Bernice LooAllen & Gledhill
Lynette ChewChee & Teo
Choi Yok HungChee & Teo
Teo Chee SengChee & Teo

4. Facts

  1. Ethical Investments Ltd agreed to subscribe for shares in Nomura Regionalisation Venture Fund Ltd.
  2. Ethical Investments failed to pay the second installment for the shares.
  3. Nomura obtained summary judgment against Ethical Investments for specific performance.
  4. Nomura later applied to discharge the specific performance order and assess damages.
  5. Nomura then sent a notice of intention to forfeit the shares.
  6. Ethical Investments applied for equitable relief against forfeiture.
  7. The notice of appeal was served out of time due to a mistake by the solicitor's staff.

5. Formal Citations

  1. Nomura Regionalisation Venture Fund Ltd v Ethical Investments Ltd, CA 12/2000, [2000] SGCA 43

6. Timeline

DateEvent
Shares allotted to Ethical Investments Ltd.
Nomura gave written notice to Ethical Investments requiring payment of the second installment.
Nomura issued a further written request for payment.
Ethical Investments made a partial payment of US$500,000.
Nomura's solicitors requested payment of the remaining US$2m.
Deadline for payment of US$2m by Ethical Investments.
Ethical Investments requested more time to make payment.
Nomura's solicitors enquired about the payment plan.
Nomura instituted Suit 623/98 against Ethical Investments.
Summary judgment granted to Nomura.
Ethical Investments' appeal against the summary judgment was dismissed.
Nomura applied for discharge of specific performance order and assessment of damages.
Court granted Nomura's application.
Nomura sent a notice of intention to forfeit to Ethical Investments.
Nomura sent a second letter rectifying errors in the notice of intention.
Deadline for payment to avoid forfeiture.
Nomura's board of directors passed a resolution forfeiting the shares.
Forfeited shares were cancelled.
Ethical Investments applied for equitable relief against forfeiture.
Assistant registrar dismissed the application.
Drew & Napier filed a notice of appeal on behalf of Ethical Investments.
Chee & Teo took over the conduct of the matter.
Notice of appeal served on Allen & Gledhill.
Ethical Investments filed an application to extend time for service of the notice of appeal.
Court of Appeal dismissed the appeal.

7. Legal Issues

  1. Extension of Time to Serve Notice of Appeal
    • Outcome: The court held that the High Court judge did not err in granting the extension of time, considering the reasons for the delay, the lack of prejudice, and the arguable merits of the appeal.
    • Category: Procedural
    • Sub-Issues:
      • Mistake of solicitor's staff
      • Prejudice to opposing party
      • Prospects of success on appeal
  2. Relief Against Forfeiture
    • Outcome: The court considered whether the forfeiture clause was a penalty clause and whether adequate notice was given, but did not make a definitive ruling.
    • Category: Substantive
    • Sub-Issues:
      • Adequacy of notice
      • Election of remedies
      • Penalty clause

8. Remedies Sought

  1. Specific Performance
  2. Damages
  3. Equitable Relief Against Forfeiture

9. Cause of Actions

  • Breach of Contract
  • Specific Performance

10. Practice Areas

  • Commercial Litigation
  • Appellate Practice

11. Industries

  • Venture Capital
  • Finance

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Re HelsbyCourt of AppealYes[1894] 1 QB 742England and WalesCited regarding whether a blunder by a solicitor's clerk is sufficient ground to extend time for appeal.
Re Coles and RavenshearCourt of AppealYes[1907] 1 KB 1England and WalesCited regarding whether an error by solicitors is sufficient ground for granting an extension of time for filing an appeal.
International Financial Society v City of Moscow Gas CoN/AYes[1877-78] 7 Ch D 241N/ACited for the principle that time to appeal should not be enlarged unless under very special circumstances.
Cheah Teong Tat v Ho Gee Seng & OrsN/AYes[1970] 1 MLJ 31MalaysiaCited regarding the interpretation of 'special circumstances' in the context of extending time to file a notice of appeal.
Chin Hua Sawmill Co Sdn Bhd v Tuan Yusoff bin Tuan MohamedFederal CourtYes[1974] 1 MLJ 58MalaysiaCited regarding the refusal to extend time due to a mistake of the solicitors.
Gatti v ShoosmithEnglish Court of AppealYes[1939] 3 All ER 916England and WalesCited for the principle that a mistake by a legal advisor may be sufficient cause to justify the court in exercising its discretion to extend time for appeal.
Palata Investments Ltd & Ors v Burt & Sinfield Ltd & OrsEnglish Court of AppealYes[1985] 2 All ER 517England and WalesCited for the factors to consider in determining whether an extension of time should be granted for appeal.
Sinnathamby & Anor v Lee Chooi YingSupreme CourtYes[1987] 1 MLJ 110MalaysiaCited regarding the court's discretion to consider a legal advisor's mistake as a reason for delay in an application for extension of time to appeal.
Tan Chai Heng v Yeo Seng ChoonN/AYes[1981] 1 MLJ 271SingaporeCited regarding the court's discretion to extend time for appeal and the need for justifiable excuse.
Pearson v Chen Chien Wen EdwinN/AYes[1991] 1 SLR 212SingaporeCited for the four factors to consider when determining whether to grant an extension of time for appeal: length of delay, reasons for delay, chances of success on appeal, and degree of prejudice.
Vettath v VettathN/AYes[1992] 1 SLR 1SingaporeCited regarding the court's consideration of fault of solicitors as a reason for delay in an application for extension of time.
Stansfield Business International Pte Ltd v Vithya Sri SumathisN/AYes[1999] 3 SLR 239SingaporeCited regarding whether an error on the part of a solicitor absolutely bars any relief.
Ratnam v CumarasamyPrivy CouncilYes[1965] 1 MLJ 228N/ACited for the principle that rules of court must be obeyed and the court's discretion to extend time must be exercised with material upon which to base it.
The Abidin DaverN/AYes[1984] AC 398N/ACited for the limited grounds on which an appellate court can interfere with a judge's exercise of discretion.
Shiloh Spinners Ltd v HardingHouse of LordsYes[1973] AC 691England and WalesCited for the modern law on relief against forfeiture.
Ratnam v Cumarasamy & AnorPrivy CouncilYes[1965] 1 MLJ 228N/ACited for the principle that the court will not interfere with a judge's discretion unless it has been exercised on a wrong principle or there has been a miscarriage of justice.
The Abidin DaverN/AYes[1984] 1 Lloyd`s Rep 339N/ACited for the limited grounds on which an appellate court can interfere with a judge's exercise of discretion.
Chong Kueng Ying & Ors v Lovis LavagnaN/AYes[1972] 1 MLJ 180MalaysiaCited regarding the exclusion of the court's discretion in cases where the delay was caused by the mistake of a legal advisor.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
O 56 r 1(3) Rules of Court 1997Singapore
O 3 r 4(1) Rules of CourtSingapore

15. Key Terms and Keywords

15.1 Key Terms

  • Extension of time
  • Notice of appeal
  • Forfeiture of shares
  • Specific performance
  • Equitable relief
  • Mistake of solicitor
  • Discretion of court
  • Summary judgment

15.2 Keywords

  • Appeal
  • Extension of time
  • Forfeiture
  • Shares
  • Singapore
  • Civil Procedure
  • Contract Law

17. Areas of Law

Area NameRelevance Score
Civil Procedure75
Appellate Practice60
Breach of Contract60
Contract Law50
Company Law50
Equitable Relief Against Forfeiture40

16. Subjects

  • Civil Procedure
  • Appeals
  • Contract Law
  • Equity