Changhe v Dexia: Striking Out Action for Failure to Comply with Peremptory Order

Changhe International Investments Pte Ltd sued Dexia BIL Asia Singapore Ltd for the return of US$10m. The first suit was dismissed for failure to comply with a peremptory order. Changhe then commenced a second action against Dexia, which Dexia sought to strike out as an abuse of process. The High Court allowed the appeal and struck out the Statement of Claim. Changhe appealed to the Court of Appeal, which dismissed the appeal, finding that Changhe had not adequately explained its non-compliance with the peremptory order in the first action.

1. Case Overview

1.1 Court

Court of Appeal of the Republic of Singapore

1.2 Outcome

Appeal dismissed with costs.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Appeal regarding striking out a second action for abuse of process due to failure to comply with a peremptory order in the first action.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Changhe International Investments Pte Ltd (formerly known as Druidstone Pte Ltd)AppellantCorporationAppeal dismissedLost
Dexia BIL Asia Singapore Ltd (formerly known as Banque Internationale A Luxembourg BIL (Asia) Ltd)RespondentCorporationAppeal dismissedWon

3. Judges

Judge NameTitleDelivered Judgment
Chao Hick TinJustice of AppealNo
Judith PrakashJudgeYes

4. Counsels

Counsel NameOrganization
Leslie Yeo Choon HsienLeslie Yeo and Associates
Sarjit Singh GillShook Lin and Bok
Seah Yi LeinShook Lin and Bok

4. Facts

  1. Changhe sued Dexia for the return of US$10m.
  2. The first suit was dismissed due to Changhe's failure to comply with a peremptory order.
  3. Changhe commenced a second action against Dexia with the same cause of action.
  4. Dexia applied to strike out the second action as an abuse of process.
  5. Changhe failed to file an affidavit explaining its non-compliance with the peremptory order.
  6. Changhe relied on an affidavit filed three years earlier that did not offer a satisfactory explanation.

5. Formal Citations

  1. Changhe International Investments Pte Ltd (formerly known as Druidstone Pte Ltd) v Dexia BIL Asia Singapore Ltd (formerly known as Banque Internationale A Luxembourg BIL (Asia) Ltd), CA 119/2004, [2005] SGCA 30

6. Timeline

DateEvent
Changhe sued Banque Internationale A Luxembourg BIL (Asia) Ltd for the return of US$10m.
Dexia filed its Defence.
Pre-trial conference held.
Parties directed to exchange lists of documents.
Changhe directed to file Summons for Directions.
Order made for Changhe to provide further and better particulars.
Second pre-trial conference held.
Parties to exchange lists of documents.
Dexia applied for an order dismissing Suit 1725.
Changhe's claim was dismissed with costs.
Changhe applied for an order setting aside the dismissal order.
Changhe's application was dismissed.
Appeal came on for hearing before Amarjeet Singh JC and was dismissed.
Appeal to the Court of Appeal was heard and dismissed.
Changhe filed the second action.
Writ was served on Dexia.
Application to strike out the Statement of Claim in the second action was fixed for hearing.
Deadline for Changhe to file an affidavit in response.
Adjourned hearing of the application.
Judgment reserved.

7. Legal Issues

  1. Abuse of Process
    • Outcome: The court held that the second suit was an abuse of process because the appellant failed to adequately explain its non-compliance with the peremptory order in the first action.
    • Category: Procedural
    • Sub-Issues:
      • Failure to comply with peremptory order
      • Contumelious conduct
    • Related Cases:
      • [1981] 1 WLR 1389

8. Remedies Sought

  1. Return of US$10m

9. Cause of Actions

  • Return of deposit
  • Wrongful payment

10. Practice Areas

  • Litigation

11. Industries

  • Banking
  • Finance

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Janov v MorrisEnglish Court of AppealYes[1981] 1 WLR 1389England and WalesApplied the principle that a second suit may be struck out as an abuse of process if the first suit was struck out for failure to comply with a peremptory order, unless a proper explanation is given.
Birkett v JamesN/AYes[1978] AC 297N/ADiscussed in relation to whether an action started within the limitation period could be struck out as an abuse of process.
Tolley v MorrisN/AYes[1979] 1 WLR 592N/ADiscussed the principle that disobedience to a peremptory order would generally amount to contumelious conduct.
Samuels v Linzi Dresses LtdCourt of AppealYes[1981] QB 115England and WalesConsidered an analogous situation where a peremptory order had not been complied with and the issue was how the court should exercise its power to extend time to comply with the order.
Syed Mohamed Abdul Muthaliff v Arjan Bhisham ChotraniCourt of AppealYes[1999] 1 SLR 750SingaporeHeld that the relevant question was whether the failure to comply with an unless order was intentional and contumelious.
Hytec Information Systems Ltd v Coventry City CouncilN/AYes[1997] 1 WLR 1666N/AExplained the rationale for holding a litigant responsible for the contumelious conduct of their solicitor.
Sushma Pte Ltd v FNT Singapore Pte LtdHigh CourtYes[1996] SGHC 258SingaporeDiscussed the possibility of commencing a fresh action if a claim was struck out due to a breach of an unless order, where the claim is not time-barred.
Caribbean General Insurance Ltd v Frizzell Insurance Brokers LtdEnglish Court of AppealYes[1994] 2 Lloyd’s Rep 32England and WalesHeld that the size of the claim was immaterial when deciding whether judgment should be entered in default of compliance with a peremptory order.
Changhe International Investments Pte Ltd v Dexia BIL Asia Singapore LtdHigh CourtYes[2005] 1 SLR 598SingaporeThe decision below that is being appealed in this case.

13. Applicable Rules

Rule Name
Rules of Court (Cap 322, R 5, 2004 Rev Ed)
O 34A r 1(1) of the Rules
O 34A r 1(2)

14. Applicable Statutes

Statute NameJurisdiction
No applicable statutes

15. Key Terms and Keywords

15.1 Key Terms

  • Peremptory order
  • Abuse of process
  • Contumelious conduct
  • Striking out
  • Unless order

15.2 Keywords

  • Striking out
  • Abuse of process
  • Peremptory order
  • Civil procedure
  • Singapore
  • Court of Appeal

17. Areas of Law

Area NameRelevance Score
Civil Practice90
Striking out90
Abuse of Process80
Judgments and Orders70

16. Subjects

  • Civil Procedure
  • Striking Out
  • Abuse of Process