Lim Quee Choo v David Rasif: Setting Aside Substituted Service & Default Judgment in Negligence Suit

In Lim Quee Choo v David Rasif, the Singapore High Court addressed an application by the second defendant, David Tan Hock Boon, to set aside an order for substituted service and subsequent default judgments in a negligence suit brought by Lim Quee Choo and Wong Peng Luan, co-administratrices of Koh Jit Meng's estate, against David Rasif and David Tan. The court, presided over by AR Goh Yihan, allowed the application, setting aside the order for substituted service and all subsequent proceedings, emphasizing that the plaintiffs had not sufficiently demonstrated the impracticability of personal service on the second defendant.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Order for substituted service and all subsequent proceedings set aside.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

High Court sets aside substituted service and default judgment against David Tan in a negligence suit, emphasizing the need for proper service.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Lim Quee Choo (suing as co-administratrix of the estate of Koh Jit Meng)Plaintiff, RespondentIndividualApplication dismissedLost
Wong Peng LuanPlaintiff, RespondentIndividualApplication dismissedLost
David RasifDefendantIndividualNot specifiedNeutral
David Tan Hock BoonDefendant, ApplicantIndividualApplication allowedWon

3. Judges

Judge NameTitleDelivered Judgment
Goh YihanAssistant RegistrarYes

4. Counsels

Counsel NameOrganization
Johnny CheoCheo Yeoh & Associates LLC
Pradeep PillaiShook Lin & Bok LLP
Sarjit Singh Gill SCShook Lin & Bok LLP

4. Facts

  1. Plaintiffs sued the defendants for negligence in relation to a flawed share-transfer agreement.
  2. Plaintiffs obtained an order for substituted service against the second defendant by advertising in The Straits Times.
  3. Plaintiffs obtained interlocutory and final judgments in default of appearance against the second defendant.
  4. Second defendant claimed he was unaware of the lawsuit until contacted by the first plaintiff.
  5. Second defendant argued that the plaintiffs did not make sufficient effort to locate him for personal service.
  6. Plaintiffs claimed they did not know the second defendant's residential address and had tried to locate him.
  7. The plaintiffs only located the note containing the second defendant’s mobile phone number in late 2007.

5. Formal Citations

  1. Lim Quee Choo (suing as co-administratrix of the estate of Koh Jit Meng) and Another v David Rasif and Another, Suit 2/2007, SUM 5455/2007, [2008] SGHC 36

6. Timeline

DateEvent
Initial writ of summons issued against the defendants.
The Straits Times publishes an article about suits against David Rasif.
Amended writ issued.
Plaintiffs applied ex parte for substituted service.
Order for substituted service granted.
Advertisement placed in The Straits Times.
Plaintiffs informed Lockton about the action.
Lockton replied that they do not deal with claimants directly.
Interlocutory judgment entered against the second defendant.
Final judgment obtained against the second defendant for $3,695,622.32.
First plaintiff called the second defendant to inform him of the default judgment.
Meeting between the parties.
Second defendant met with the plaintiffs’ solicitor.
Court documents forwarded to the second defendant.
Second defendant’s solicitors wrote to the Law Society requesting to inspect files.
Second defendant’s solicitors wrote to the plaintiffs’ solicitor requesting to inspect files.
Inspection of files took place.
Copies of documents received by the second defendant’s solicitors.
Application commenced to set aside the order for substituted service.
Plaintiffs’ solicitor informed the second defendant’s solicitors about more files.
Files inspected.
Copies of relevant documents obtained.
Second defendant left DRP's offices.

7. Legal Issues

  1. Setting Aside Substituted Service
    • Outcome: The court held that the plaintiffs had not discharged their burden of showing that it was impracticable to effect personal service on the second defendant.
    • Category: Procedural
    • Sub-Issues:
      • Insufficient effort to effect personal service
      • Failure to conduct proper People Profile Information searches
    • Related Cases:
      • [1915] 1 KB 857
      • [2002] 4 SLR 933
  2. Setting Aside Default Judgment
    • Outcome: The court found that the second defendant had an arguable defence and that liability depended almost entirely on the assessment of facts at trial.
    • Category: Procedural
    • Sub-Issues:
      • Arguable defence
      • Real prospect of success
      • Undue delay
    • Related Cases:
      • [1995] 1 SLR 484
      • [1937] AC 473

8. Remedies Sought

  1. Setting aside order for substituted service
  2. Setting aside interlocutory judgment
  3. Setting aside final judgment
  4. Leave to enter an appearance and file a defence

9. Cause of Actions

  • Negligence

10. Practice Areas

  • Civil Litigation

11. Industries

  • Legal Services

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Porter v FreudenbergKing's Bench DivisionYes[1915] 1 KB 857England and WalesCited for the principle that an applicant for substituted service must satisfy the court that personal service is not possible and that the method of substituted service is likely to reach the defendant.
WEA Records Ltd v Visions Channel 4 LtdNot specifiedYes[1983] 1 WLR 721England and WalesCited for the principle that an ex parte order is provisional and can be discharged or varied when reviewed with evidence from the other party.
HMS ArcherProbate, Divorce and Admiralty DivisionYes[1919] P 1England and WalesCited for the fundamental rule that a party affected by an ex parte order may apply to the court to discharge it.
BNP Paribas v Polynesia Timber Services Pte LtdHigh CourtNo[2002] 4 SLR 933SingaporeDistinguished. Cited by the plaintiffs for the proposition that the purpose of service is fulfilled if the defendant knows of the proceedings, but the court found that knowledge from a newspaper article is insufficient.
Karen Ahmad v Standard Chartered BankNot specifiedYes2(3) Mallal’s Digest (4th Ed, 2001 Reissue) [5328]SingaporeCited with approval in BNP Paribas for the principle that the intention of substituted service is that the defendant will probably get to hear of the proceedings.
Low Choon Kung v Tham Chan KumDistrict CourtYes[2004] SGDC 139SingaporeCited as an example where the courts considered both prayers for setting aside substituted service and entering an appearance in the same application.
Development & Commercial Bank Bhd v Aspatra Corp Sdn BhdNot specifiedNo[1995] 3 MLJ 472MalaysiaDistinguished. Cited by the plaintiffs for the proposition that including a prayer for leave to enter an appearance waives any irregularity of the order for substituted service, but the court distinguished it because the prayers were in the alternative in this case.
Wiseman v WisemanNot specifiedYes[1953] 2 WLR 499England and WalesCited for the principle that methods of communication which were reasonably obvious and could have been used but were not would fall short of the standard required for sufficient effort in effecting personal service.
Abdul Gaffer v Chua Kwang YongCourt of AppealNo[1995] 1 SLR 484SingaporeLeading local case for the law on Order 13 rule 8, laying down the principles for exercising the court’s discretion to set aside a default judgment. The court ultimately distinguishes this case.
Canberra Development Pte Ltd v Mercurine Pte LtdHigh CourtYes[2007] SGHC 185SingaporeCited for reaffirming the principles in Abdul Gaffer and elaborating on the test for setting aside a regular judgment.
Allen v TaylorCourt of AppealNo[1992] PIQR 255England and WalesCited for the proposition that in cases where liability turns entirely on the assessment of facts at trial, it is impossible to be dogmatic about the extent to which the court must be satisfied of the validity of the suggested defence. The court ultimately distinguishes this case.
Evans v BartlamHouse of LordsYes[1937] AC 473England and WalesCited for the principle underlying the discretionary power of the court to set aside a judgment entered in default of appearance.
Su Sh-Hsyu v Wee Yue ChewCourt of AppealYes[2007] 3 SLR 673SingaporeCited for endorsing the principle in Evans v Bartlam and stating that the question of whether there is a defence on the merits is the dominant feature to be weighed against the applicant’s explanation for the default and any delay.
Burns v KondelNot specifiedYes[1971] 1 Lloyd’s Rep 554England and WalesCited for the view that the defendant does not have to show a good defence on the merits but only a defence which discloses an arguable or triable issue.
Singapore Gems v The Personal Representatives for Akber Ali, deceasedHigh CourtYes[1992] 2 SLR 254SingaporeCited for expressing the view that the defence need only disclose an arguable or triable issue.
Alpine Bulk Transport v Saudi Eagle ShippingCourt of AppealNo[1986] 2 Lloyd’s Rep 221England and WalesExplained and ultimately superseded the test in Evans v Bartlam, requiring a defendant to show that he has a defence which has a real prospect of success.
Hong Leong Finance Ltd v Tay Keow Neo & AnorHigh CourtYes[1992] 1 SLR 205SingaporeFollowed the new test in Alpine Bulk Transport v Saudi Eagle Shipping, requiring a higher standard than the “arguable or triable issue” test.
The Ruben Martinez VillenaNot specifiedNo[1987] 2 Lloyd’s Rep 621England and WalesDoubted the purported effect of The Saudi Eagle, reiterating the rationale and true meaning of the decision in Evans v Bartlam.
Day v RAC Motoring ServicesCourt of AppealYes[1999] 1 WLR 2150England and WalesHeld that a court need not be satisfied that there was a real likelihood that the defendant would succeed but merely that the defendant had an arguable case which carried some degree of conviction.
Swain v HillmanNot specifiedYes[2001] 1 All ER 91England and WalesContinued to use the expression “real prospect of success”.
PL Construction v Abdullah bin SaidNot specifiedYes[1989] 1 MLJ 60MalaysiaSaid that a defence on the merits means a defence which discloses “an arguable and triable issue”.
Hasil Bumi Perumahan v United Malayan BankingSupreme CourtYes[1994] 1 MLJ 312MalaysiaExpressed the view that the approach in The Saudi Eagle was not entirely clear and that the test to set aside a default judgment ought to remain the same to determine whether an application for summary judgment should succeed.
Awyong Shi Peng v Lim Siu LayHigh CourtYes[2007] 2 SLR 225SingaporePreliminary support for the view that there exists a second class of cases in which Abdul Gaffer does not apply fully.
TR Networks Ltd and Others v Elixir Health Holdings Pte Ltd and OthersHigh CourtYes[2005] SGHC 106SingaporeHeld that Order 19 rule 9 “were on the same terms” as Order 13 rule 8 and seemingly applied The Saudi Eagle test to Order 19 rule 9 in that case.
Loh Poh Lai (trading as Edmund Dawn Marine Engineering) v Wei Sheng Marine Services Pte LtdHigh CourtYes[1997] 2 SLR 154SingaporeThe High Court, while deciding that the test was that as stated in Abdul Gaffer, nonetheless was able to decide that there was no real prospect of success as the defendant’s allegation of the non-existence of the contract which he was now sued on was found to be unsupportable by the evidence before the court.
Spandeck Engineering (S) Pte Ltd v Yong Qiang ConstructionHigh CourtYes[1999] 4 SLR 447SingaporeThe High Court found that the defence did not have a real prospect of success and did not carry some degree of conviction as, once again, the defendant’s allegations of fact were unsupportable by the evidence.
Zulkifli Baharudin v Koh Lam SonHigh CourtYes[2000] 2 SLR 233SingaporeThe High Court declined to set aside the default judgment as the defence did not challenge the facts as alleged by the plaintiff but that, as a matter of law, the words were clearly defamatory.
Australian Timber Products Pte Ltd v Koh Brothers Building & Civil Engineering Contractor (Pte) LtdHigh CourtYes[2005] 1 SLR 168SingaporeThe High Court once again endorsed the Abdul Gaffer test and decided not to set aside the default judgment as the defendant failed to show that there was any substance to its suggested defence that the plaintiff’s works were incomplete and defective.
M-Power Development Pte Ltd v Goodway Agencies (Shipping) Pte LtdHigh CourtYes[2003] SGHC 180SingaporeWhere the issue was whether the plaintiff had sued the right party, namely the party who issued the bill of lading, the High Court upheld the lower court’s decision to set aside the default judgment.
Cosmic Insurance Corp Ltd v Ong Kah Hoe (trading as Ong Industrial Supplies)High CourtYes[1996] 2 SLR 356SingaporeThe High Court decided that the appropriate test was a “real prospect of success” and set aside the default judgment as the issue concerned a question of law.
European Asian Bank v Chia Ngee Thuang & anorNot specifiedYes[1995] 3 SLR 171SingaporeCited for the principle that there had been no undue delay by the second defendant in applying for the default judgment to be set aside.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 62 r 5(1)Singapore
Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 32 r 6Singapore
Rules of Court O 13 r 8Singapore
Rules of Court O 14Singapore
Rules of Court O 19 r 9Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Substituted service
  • Default judgment
  • Negligence
  • People Profile Information searches
  • Arguable defence
  • Real prospect of success
  • Impracticable service

15.2 Keywords

  • Substituted service
  • Default judgment
  • Negligence
  • Singapore High Court
  • Civil Procedure

17. Areas of Law

Area NameRelevance Score
Civil Practice75
Negligence70
Professional Negligence60
Substituted Service50
Setting Aside Default Judgement45
Contract Law30
Evidence Law25
Estoppel20
Tomlin Order15
Agency Law15
Corporate Law10

16. Subjects

  • Civil Procedure
  • Service of Process
  • Default Judgments