Anwar Siraj v Ting Kang Chung John: Striking Out Appeal for Untimely Service

In Anwar Siraj and Another v Ting Kang Chung John, the Court of Appeal of Singapore, on 9 December 2009, granted the application by Ting Kang Chung John to strike out the appeal filed by Anwar Siraj and Norma Khoo. The court found that the appellants failed to serve the notice of appeal within the prescribed time and saw no reason to extend the deadline. The underlying dispute arose from an arbitration regarding a construction agreement.

1. Case Overview

1.1 Court

Court of Appeal of the Republic of Singapore

1.2 Outcome

Appeal struck out.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Appeal struck out due to appellants' failure to serve the notice of appeal within the prescribed time. The court found no grounds to extend the deadline.

1.7 Decision Date

8 December 2009

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Anwar Siraj	Appellant	Individual	Appeal Struck Out	Lost
Khoo Cheng Neo Norma	Appellant	Individual	Appeal Struck Out	Lost
Ting Kang Chung John	Respondent, Applicant	Individual	Application Granted	Won	Ng Yuen of Malkin & Maxwell LLP

3. Judges

Judge Name	Title	Delivered Judgment
Chao Hick Tin	Justice of the Court of Appeal	Yes
V K Rajah	Justice of the Court of Appeal	No

4. Counsels

Counsel Name	Organization
Ng Yuen	Malkin & Maxwell LLP

4. Facts

Appellants filed an appeal against the High Court's decision.
Appellants failed to serve the notice of appeal within the prescribed time.
Appellants sought to use service of the notice of appeal as a bargaining chip.
Appellants delayed service due to uncertainty over their right to appeal.
The High Court declined to order the police to conduct an investigation.
The appellants had magistrate complaints against the applicant.
The magistrate complaints were unrelated to the arbitration proceedings.

5. Formal Citations

Anwar Siraj and Another v Ting Kang Chung John, CA 18/2009, [2009] SGCA 61

6. Timeline

Date	Event
1999-12-30	Agreement signed to demolish and reconstruct house.
2001-07-01	Dispute arose between appellants and contractor.
2001-12-12	President of the SIA appointed John Ting as the sole arbitrator.
2002-01-01	Originating Motion No 26 of 2002 instituted to remove arbitrator.
2003-05-13	Arbitrator required parties to pay arbitration fees.
2003-09-10	Contractor claimed to have made payment of its share of the fees.
2003-11-24	Arbitration hearing conducted ex parte.
2003-12-01	Applicant invited Contractor and the appellants to present submissions.
2005-04-15	Arbitration award written.
2006-06-02	Suit No 348 of 2006/M filed against the Contractor.
2006-09-21	Originating Summons No 1807 of 2006/S filed against the Contractor and the appellants.
2008-09-24	Originating Summons No 1231 of 2008/W filed to set aside the arbitration award.
2008-10-31	Application (Summons No 4814/2008/F) made in OS 1231/2008.
2009-01-19	Lee J made his ruling.
2009-02-05	Court directed OS1807/2006 and OS1231/2008 to be consolidated.
2009-02-16	Appellants demanded adjournment of taxation of bill of costs.
2009-02-19	Appellants filed appeal (CA 18/2009).
2009-02-23	Appellants informed applicant of filed notice of appeal.
2009-07-23	Payment of the security for costs.
2009-07-24	Notice of appeal served on the applicant’s solicitors.
2009-12-09	Application to strike out the appeal granted.

7. Legal Issues

Striking out Notice of Appeal
- Outcome: The court held that the appeal should be struck out due to the appellants' failure to serve the notice of appeal within the prescribed time and declined to extend the time for service.
- Category: Procedural
- Sub-Issues:
  - Service of notice of appeal out of time
  - Extension of time for service

8. Remedies Sought

Striking out of appeal

9. Cause of Actions

No cause of actions

10. Practice Areas

Appeals
Civil Litigation

11. Industries

No industries specified

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Anwar Siraj and another v Ting Kang Chung John and another	High Court	Yes	[2009] SGHC 71	Singapore	The High Court decision being appealed against, regarding the refusal to order police investigation.
Anwar Siraj and another v Ting Kang Chung and another	High Court	Yes	[2003] 2 SLR 287	Singapore	Cited for the High Court's ruling that there were insufficient grounds to remove the applicant as arbitrator.
Anwar Siraj and another v Ting Kang Chung John and another	High Court	Yes	[2009] SGHC 129	Singapore	Cited for the High Court's dismissal of the third prayer regarding consolidation of proceedings.
Riduan bin Yusof v Khng Thian Huat and another	Court of Appeal	Yes	[2005] 2 SLR 188	Singapore	Cited for the court's inherent jurisdiction to strike out a notice of appeal filed out of time.
Jeyaretnam Joshua Benjamin v. Lee Kuan Yew	N/A	Yes	[1991] S.L.R. 118	Singapore	Cited as a case involving striking out of notices of appeal linked to Order 57, Rule 4.
Ooi Phee Cheng v. Kok Yoon San	N/A	Yes	[1951] 1 M.L.J. 135	N/A	Cited as a case involving striking out of notices of appeal linked to Order 57, Rule 4.
Ex parte Saffery. In re Lambert	English Court of Appeal	Yes	(1877) 5 Ch D 365	England	Cited for the principle that service of the notice of appeal on the respondent is critical.
Tan Thye Heng v Pan Mercantile (S) Pte Ltd and another	High Court	Yes	[1989] SLR 973	Singapore	Cited for holding that the notice of appeal must be both filed and served within the prescribed time.
Nomura Regionalisation Venture Fund Ltd v Ethical Investments Ltd	High Court	Yes	[2000] 2 SLR 686	Singapore	Cited for accepting the ruling in Tan Thye Heng.
Lee Hsien Loong v Singapore Democratic Party and others and another suit	Court of Appeal	Yes	[2008] 1SLR 757	Singapore	Cited for approving the ruling in Tan Thye Heng.
AD v AE	Court of Appeal	Yes	[2004] 2 SLR 505	Singapore	Cited for holding that there should be no difference between late filing and late service of a notice of appeal.
Lai Swee Lin Linda v Attorney-General	Court of Appeal	Yes	[2006] 2 SLR 565	Singapore	Cited for setting aside the notice of appeal for being filed and served out of time.
Chen Chien Wen Edwin v Pearson	N/A	Yes	[1991] SLR 578	Singapore	Cited for the rule that the High Court has the power to extend time to file or serve a notice of appeal out of time only if the application is made to the High Court before the expiration of the prescribed period for filing or service.
Pearson v Chen Chien Wen Edwin	Court of Appeal	Yes	[1991] SLR 212	Singapore	Cited for the four factors the court considers in determining how the discretion to extend time should be exercised.
Thamboo Ratnam v Thamboo Cumarasamy and Cumarasamy Ariamany d/o Kumarasa	Privy Council	Yes	[1965] 1 WLR 8	N/A	Cited for the overriding consideration that the Rules of Court must prima facie be obeyed.
The Melati	Court of Appeal	Yes	[2004] 4 SLR 7	Singapore	Cited for underscoring the point that the need for finality was a “paramount consideration”.
Fagan v Commissioner of Metropolitan Police	N/A	Yes	[1969] 1 QB 439	United Kingdom	Cited by the appellants, but the court found it irrelevant.
R v Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board	N/A	Yes	[1982] QB 458	England	Cited for the proper process for the Appellants to invoke for the said object would have been to commence proceedings for an order of mandamus.
R. v Metropolitan Police Commissioner Ex p. Blackburn	N/A	Yes	[1968] 2 Q.B. 119	N/A	Cited for the courts will not review the disposition of forces and the allocation of resources to particular crimes or areas will not be reviewed.
R. v Chief Constable of Sussex Ex p. International Traders Ferry Ltd	N/A	Yes	[1998] 3 W.L.R. 1260	N/A	Cited for the courts will not review the disposition of forces and the allocation of resources to particular crimes or areas will not be reviewed.
Aberdeen Asset Management Asia Ltd v Fraser & Neave Ltd and another	Court of Appeal	Yes	[2001] 4 SLR 441	Singapore	Cited for the threshold for the chances of appeal succeeding is a rather low one – is the appeal hopeless?
Denko-HLB Sdn Bhd v Fagerdala Singapore Pte Ltd	N/A	Yes	[2002] 3 SLR 357	Singapore	Cited for a mere assertion that there has been an oversight is obviously insufficient and could lead to an abuse of process.

13. Applicable Rules

Rule Name
Order 57 Rule 4 of the Rules of Court
Order 3 Rule 2(2) of the Rules of Court
Order 2 Rule 1(1) of the Rules of Court
Order 3 Rule 4 of the Rules of Court
Order 57 Rule 17 of the Rules of Court

14. Applicable Statutes

Statute Name	Jurisdiction
Rules of Court (Cap No 322, R 5, 2006 Rev Ed)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Notice of appeal
Service of notice
Extension of time
Striking out
Irregularity
Discretion
Prejudice
Finality

15.2 Keywords

Appeal
Striking out
Service
Time
Rules of Court

17. Areas of Law

Area Name	Relevance Score
Civil Practice	75
Arbitration	65
Breach of Contract	30
Contract Law	30

16. Subjects

Civil Procedure
Appeals
Striking Out