4 Modes of Commencing Civil Proceedings

Modes Of Commencing Civil Proceedings - NOT IMPORTANT FOR EXAMS!!!! Before 2006 4 originating types of processes: – Writ – Originating Summons – Originating Motion – Originating Petition Most claims: Writ or OS Order 5 rule 5: use OM or OP where rules specify Common uses for OMs: – Admiralty – Admission as advocate and solicitor under LPA Common instances of OPs: – Divorce – Petitions of course under the LPA for taxation of solicitor-client costs. – Company matters - • Application to court under any written law, general rule is OS, unless stated otherwise – Order 5 rule 3 • Use OP and OM only if specified – Order 5 rule 5 eg admission of lawyers (OP) • Order 88, Companies Act – All applications by OS – Pre-1996, some were by OP, others by OM From 2006, 2 modes: Writ Originating Summons - (Distinguished from “Summons”. This is originating, first. Summons is claim within a main claim.) Order 1 rule 4 – defn of orig process refers only to orig summons and writ of summons as two modes of commencement – originating process" means a writ of summons or an originating summons 2 phases: Phase 1: 1 January 2006 All proceedings by writ/os except: – Bankruptcy proceedings; – Winding up of companies, judicial management of companies, winding up of limited liability partnerships; – Proceedings under Part X, Women’s Charter and Matrimonial Proceedings Rules. Phase 2: April 2006 All proceedings not affected by phase 1 therefore now everything is now by writ or OS – all standardized Summary of Changes Abolition of originating motions and petitions – Orders 8 and 9 deleted. Writ of Summons process – Remains essentially the same; – Form 2 largely unchanged. Originating Summons process

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Previously appearance must be entered for some OSes. Now no appearance needed. Only inter partes and ex parte originating summons. – OSes will as general rule be heard in chambers, subject to court’s discretion/ practice direction /written law. => order 8 and 9 deleted fr rules

Mode of beginning civil proceedings (O. 5, r. 1) 1. Except in the case of proceedings which by these Rules or by or under any written law are required to be begun by any specified mode of commencement, proceedings may be begun either by writ or by originating summons as the plaintiff considers appropriate. 2 categories (/3) 1. Compulsory writ - i.e. must commence with Writ 2. compulsory OS 3. Either Writ or Originating Summons A) Compulsory Writ Old order 5 rule 2 – orig in England these were trial by jury claims. Therefore in all likelihood there wld be subst dispute of fact and not law. o Claim for any relief for any tort (besides trespass to land, where writ is optional) o Claim based on allegation of fraud o Damages for breach of duty in respect of death of person or personal injury or damage to property Today: - Proceedings in which there is a substantial dispute of fact:– Order 5 rule 2 – for you to decide yourself. But old rule still relevant as considerations order 5 rule 4(2) – where summary judgement sought Proceedings which must be begun by writ (O. 5, r. 2) 2. Proceedings in which a substantial dispute of fact is likely to arise shall be begun by writ. -

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Eg Order 5, r.2: writ for tort, breach of duty, fraud, infringement of patent, breach of promise to marry. Summary judgement – order 14 judgement Order 5 rule 4(2) ((b) in which there is unlikely to be any substantial dispute of fact,

B) compulsory OS (Proceedings which must be begun by originating summons (O. 5, r. 3) 3. Proceedings by which an application is to be made to the Court or a Judge thereof under any written law must be begun by originating summons. ) - It is a general rule that for any application to the court under any written rule, Originating Summons must be used (unless stated otherwise) - Eg Order 5, r.3: o.s. where statute provides, eg Trustees Act: s59 applications. - Example: Order 88 states that every application under the Companies Act must be made by originating summons. Interpretation (O. 88, r. 1) 1. In this Order — "Act" means the Companies Act (Chapter 50); "qualifying creditor" has the same meaning as in section 78H (6) of the Act. Applications to the Court (O. 88, r. 2) 2. —(1) Unless otherwise provided in the Act or this Order, every application under the Act must be made by originating summons and these Rules shall apply subject to this Order. B**Conversion of OS to writ

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Conversion of OS to Writ – because dispute of fact arises. Shld action be struck out? Or remain as OS? etc • Court may order conversion • Court may order pleadings to be served or for affidavits to stand as pleadings • Generally get order for pleadings order 5 rule 3; order 5 rule 4(2)

LS Investment Pte Ltd v Majlis Ugama Islam Singapura [1998] 3 SLR 754 Held, with regard to LSI’s submission that there should be an order for retrial as the case should have proceeded as if begun by writ as questions of fact were involved and there should be cross-examination of witnesses, the court held that there was no cause for a retrial under s 39 of the Supreme Court of Judicature Act (Cap 322) as it was clear at all times that the parties were prepared to let the matter be decided on the basis of the affidavit evidence.

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• Order 28, rule 8 provides the court with a discretion to order a conversion of an originating summons to a writ / and to order pleadings to be served or for affidavits to stand as pleadings o If, at any stage, proceedings should be continued as by writ, court may so order, pursuant to O28, r 8. Court may direct affidavits to stand as pleadings; or order parties to file pleadings.

Continuation of proceedings as if cause or matter begun by writ (O. 28, r. 8) 8. —(1) Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that pleadings shall be delivered or that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof. (2) Where the Court decides to make such an order, Order 25, Rules 2 to 7, shall, with the omission of so much of Rule 7 (1) as requires parties to serve a notice specifying the orders and directions which they require and with any other necessary modifications, apply as if there had been a summons for directions in the proceedings and that order were one of the orders to be made thereon. (3) This Rule applies notwithstanding that the cause or matter in question could not have been begun by writ. (4) Any reference in these Rules to an action begun by writ shall, unless the context otherwise requires, be construed as including a reference to a cause or matter proceedings in which are ordered under this Rule to continue as if the cause or matter had been so begun. -

Possible caveat: for cases falling within O5, r 2: OS cannot be converted to writ under O28 r 8: – Re 426 Green Lane [1971] 1 All ER 315 – NO because specifically provided under O5r2 so need to start all over again – BUT Re 426 Green Lane was criticised in Re Deadman [1971] 2 All ER 101.- refered to order 2 rule 1 – when beginning any proceedings where failure to comply – treated as irreg and can be cured.

• Re Green Lane [1971] 1 WLR 138 • Re Deadman [1971] 1 WLR 426 facts similar – allegation of fraud. Both cases also started with OS and other party tried to strike out on grd tt shldntstart on OS because this is fraud. Both cases gave diff rulings greenlane – first in time – diff judges – held that this was serious error. Plaintiff ought to know this is fraud, dispute of fraud, not just technicalit so court struck out OS and ordered writ to be restarted. May be serious because of costs and potential time bar deadman – court considered green lane and held that counsel in greenlane shld have brought order 2 rule 1 to attn of judge. Wld have concluded that not so serious and mere irregularity and cld be rectified by allowing case to cont as though a writ. -

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if started by OS when you should have started by writ, courts usually lenient in allowing conversion to writ. In both cases, fraud alleged, yet Originating Summons were filed instead of writs. In Green Lane, court said cannot convert. In Deadman, court said can convert, because of Order 28 rule 8(3) which Green Lane did not look at.

Re 462, Green Lane, Ilford [1971] 2 W.L.R. 138

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Abstract: Proceedings in which fraud is alleged must be commenced by writ. On the direction of the Chief Land Registrar the plaintiff issued an originating summons to determine whether a caution placed by him on the register of the defendant's title to certain land should continue to have effect or be cancelled. In his affidavit in support of the summons he alleged fraud. Summary: Held, the proceedings could not be ordered to be continued as though commenced by writ: new proceedings commenced by writ would have to be instituted.

Re Deadman [1971] 1 WLR 426 - Abstract: An action begun by originating summons may be continued, under Rules of the Supreme Court Ord. 28r. 8, as if begun by writ, where the original proceedings are amended to include an allegation of fraud. The plaintiff, a daughter of the testator, sought the determination of the question whether a gift to her sister was satisfied or wholly or pro tanto adeemed by a gift inter vivos. As a result of the evidence it was sought to amend the summons by adding an allegation of undue influence. The sister objected that since the proposed amendment amounted to an allegation of fraud, the action should be begun by writ pursuant to Ord. 5, r. 2 (b). - Summary: Held, the action would become such an action, but could proceed as if begun by writ, under Ord. 28, r. 8, and the amendment should be allowed. (Re 462, Green Lane, Ilford [1971] 2 W.L.R. 138 considered). -

Sg no case on this issue See malaysin case –

Malaysian International Merchant Bankers Bhd v Highland Chocolate & Confectionary Sdn Bhd & Anor [1997] 1 MLJ 102 - court looked at the two cases and agreed with deadman. A preliminary objection was raised by the defendant that as the proceedings involved an alternative allegation of fraud, it must be begun by writ and not by way of originating summons. Order 5 r 2(b) of the Rules of the High Court 1980 (`the RHC`) provides that proceedings in which a claim made by the plaintiff is based on an allegation of fraud must be begun by writ. Counsel for the plaintiff submitted that the failure of the defendant to file an affidavit in reply was a defect which affected the application of O 28 r 8(1) of the RHC. - Held , dismissing the preliminary objection with costs: - (1).As fraud was not the sole issue in the proceedings, but only raised in the affidavit as an alternative, it was not necessary for the plaintiff to proceed by way of a writ action (see p 108F); Re Deadman (deceased) Smith v Garland & Ors [1971] 2 All ER 101 followed. (2).The plaintiff could proceed by an originating summons as the whole case hinged on the interpretation of a debenture document with an alternative averment in fraud (see p 108G). - (3).For the courts to resort to O 28 r 8(1) of the RHC, all parties must file their affidavits (see p 108G); Beh Lee Liang v Chew Sah Suak & Anor [1996] 1 CLJ 173 followed. (4).As the plaintiff had chosen to proceed by way of an originating summons, he must therefore forfeit his right to obtain summary judgment under O 14 or O 81 of the RHC and he could never proceed by way of a writ action (see p 108H). court looked at the two cases and agreed with deadman. Comments: Patrick ang – deadman is correct. Because order 5 rule 2 does not specify fraud. At the time of gl and dm, arguable which was right because o5r2 reqd cases dealing with fraud to be commencewd by writ – compulsory. Rule very clear and shld not be breached. Gtreenlane justifiable on tt basis. Today, kinder approach shld be taken because abolished. As long as no dispute of fact, os shld just cont as though a writ and conversion take place and order of costs moderated within costs ie Winning party will get the csots of this application, regardless of who won the application

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Order 2, r.1 (used in Re Deadman): – Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

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Subject to paragraph (3), the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit. – The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed. See chee siok chin v minister for home affairs 2005 SCHC 216 – (wrongly commenced by OM, writ or OS needed); court rectified matter under order 2 r 21, said tt can direct as if begyn by OS Cf: question of costs thrown away by use of the incorrect procedure.

C) Either Writ or OS Proceedings which may be begun by writ or originating summons (O. 5, r. 4) 4. —(1) [Deleted by S 806/2005] (2) Proceedings — (a) in which the sole or principal question at issue is or is likely to be, one of the construction of any written law or of any instrument made under any written law, or of any deed, will, contract or other document, or some other question of law; or (b) in which there is unlikely to be any substantial dispute of fact, are appropriate to be begun by originating summons unless the plaintiff intends in those proceedings to apply for judgment under Order 14 or for any other reason considers the proceedings more appropriate to be begun by writ.

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Choose Originating Summons if Sole or principal issue is one of construction of written law or instrument made under written law, deed, will, contract or other question of law unlikely to be substantial dispute of fact not going for summary judgment under Order 14 eg Bank sue customer, not likely to have dispute of fact so use OS. But if there is dispute, use writ because can get summary judgment quicker. Choose writ if afraid of conversion from OS to writ. OS is appropriate where sole question is one of construction of law, question does not involve substantial dispute of fact. - [cf: O14 or O14, r 12 applications: ‘clearcut questions of law’: Cascade Shipping Inc v Eka Jaya Agencies (S) Pte Ltd, Chao J.] OS/writ specified in certain cases complex facts/ need formalized proced for witnesses to come on Where trial process is needed [complex facts, substantial evidence, importance of crossexamination of witnesses] writ is more appropriate.

WHICH MODE TO COMMENCE Kuah Kok Kim v Chong Lee Leong Seng Co (Pte) Ltd [1991] 2 MLJ 129. The appellants were minority shareholders of the company, Chong Lee Leong Seng Co (Pte) Ltd (the company). In 1989, they commenced proceedings under s 216 of the Companies Act (Cap 50, 1990 Ed) (the Act) by way of petition filed in Companies Winding-Up Petition No 77 of 1989 seeking an order that the company be wound up under the Companies Act and that liquidators be appointed. The petition was presented as a winding-up petition under the provisions of the Companies (Winding-Up) Rules 1969. The petition was subsequently advertised. A week later, the company obtained an order under s 259 of the Act. The company then took out an application to strike out the petition under O 18 r 19(1) of the Rules of the Supreme Court 1970. The application was resisted by the appellants. The judge held that the petition was improperly presented as a winding-up petition under the Companies ((Winding-Up) Rules 1969, as the proceedings ought to have been properly commenced by way of petition under O 88 of the Rules of the Supreme Court 1970, and ordered that the petition be struck out (see [1989] 3 MLJ 343). The appellants appealed.

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Held, allowing the appeal: (1).The appellants ought to have presented the proceedings as an originating petition under O 88 r 5(h) followed by a summons-for-directions under O 88 r 7. Order 88 rr 5 and 7 prescribed the procedure for making an application under s 216, irrespective of whether or not a winding-up order was expressly asked for. (2).In this case, the proceedings were begun by a petition, so the mode of commencement as prescribed by O 88 r 1(2) had been followed and was correct. The only defect was that it bore the heading or title of a companies winding-up petition and was filed as such in the Registry. The heading or title should have been that of an originating petition and filed as such. There had been a failure to comply with a procedural requirement. This failure was an irregularity and was not such a fundamental or serious one that it ought not to be remedied under O 2 r 1; a slight amendment to the heading or title of the petition would cure the defect.

Tan Han Yong v Kwantung Provincial Bank [1993] 1 SLR 971 The respondent bank KPB was the vendor and mortgagee of a Housing and Development Board (HDB) leasehold property and the mortgagor was a company, NAP. KPB exercised their power of sale as mortgagees and they subsequently agreed to sell the property to the appellant Tan. Before completion, Tan discovered that NAP breached the conditions of their lease in making additions/alterations to the property and changes of use without HDB’s prior written consent. HDB was prepared to consent to the alterations subject to the execution of a supplemental deed to vary the lease and payment of an administrative fee. Tan refused to execute the deed this would impose severe restrictions on the disposal of the property compared to the terms of the lease at the time the agreement was made. KPB then procured the execution of the deed by NAP to safeguard their interests from action by HDB for the breaches of conditions in the lease. Tan then sought a declaration under s 4 of the Conveyancing and Law of Property Act (Cap 61) (‘the Act’) that he was not bound to complete the purchase subject to the terms of the supplemental deed without an abatement of 10% of the purchase price or such other abatement as the court may deem fit and just, or alternatively that he was entitled to rescind the agreement and recover the deposit paid with interest and damages. Before the summons came up for hearing, the parties came to an interim settlement and a consent order was recorded extending the date of completion to 15 August and stating that subject to completion, the claim for abatement was ‘to be preserved and disposed of in these proceedings’. The sale and purchase was completed in the name of Tan’s nominee. At the hearing of the originating summons, Tan’s then counsel stated the claim was for damages for KPB’s breach of fiduciary duty in allowing the supplemental deed to be executed. The court held that it had no power to make an order for damages in proceedings under s 4 of the Act, and Tan appealed. Held, allowing the appeal: (1) In this case Tan was claiming compensation for diminution in the value of the property on account of the execution of the supplemental deed. It was a claim for compensation and not damages. The relief sought by the originating summons came fully within the terms of s 4 of the Act. (2) Even if the claim did not fall within s 4 of the Act, the court should exercise its discretion and amend the originating summons under O 2 r 1 of the Rules of the Supreme Court 1970 as there was a formal defect in this case. To obviate any doubt the originating summons was amended and remitted to the High Court for determination on its merits. Re CHS [1997] 3 MLJ 152 The applicant (`CHS`) and her husband (`the husband`) were the natural parents of one FHL who was born on 1 January 1979. The husband left the matrimonial home since 1982 and could not be found. On 3 September 1995, FHL married one LEW in accordance with Chinese customary rights with the blessings of both the applicant and LEW`s parents. At the time of the application, FHL was already six months pregnant and desired that her marriage with LEW be registered pursuant to the Law Reform (Marriage and Divorce) Act 1976 (`the Act`). As she was under 21 years of age, the consent of the father must first be obtained before the marriage could be duly registered. The applicant prayed by way of an originating motion that the consent of the husband be dispensed with and that the applicant be allowed to give the necessary consent. The court had to consider whether: (i) the proper procedure had been followed; and (ii) its discretion to grant consent ought to be exercised in this particular case. - Held , allowing the application: (1).On the facts of this case, the person who could lawfully give the consent was the father as provided by subs (1)(a) of the s 12 of the Act or, if he was dead, the mother as provided by sub-s (1)(b) of s 12. Thus, the legal right of the mother to give her consent arose only when the father was dead and not on any other ground. As the father in this case was not dead, the applicant was not the proper person to give the consent. This interpretation flowed from the plain meaning of the words employed in the section and it was the function of the court to give effect to the statute according to its natural and ordinary meaning .

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(2).As it was impracticable to obtain the consent of the father as he was not available, the proper procedure was for the applicant to apply for an order to enable the court to give the required consent. (3).The proceedings ought to be by way of an originating summons and not an originating motion as was done in this case. However, whether this amounted to an irregularity or nullity was not important as O 2 of the Rules of the High Court 1980 (`the RHC`) had done away with this distinction. Every omission or mistake in practice or procedure is thus to be regarded as an irregularity which the court could and should rectify so long as it could do so without injustice. In this case, since nobody was prejudiced and based on the justice of the case and the urgency of the matter, bearing in mind the fact that FHL was already six months pregnant, the originating motion therefore could be treated as an originating summons. (4).Under O 20 r 8 of the RHC, all amendments would be allowed at any stage of the proceedings and of any documents in the proceedings (other than a judgment or order) on such terms as to costs or otherwise as the court thinks fit. An amendment would be refused if it resulted in prejudice or injury which could not be properly compensated for by costs. As the documents in this application did not require service on any other person thereby not resulting in prejudice to anyone - and bearing in mind the urgent nature of the application and the fact that the amendment sought could have been conveniently inserted in the originating summons - the oral application to amend the prayer to enable the court to give the required consent was allowed. (5).This case concerned a couple already married under Chinese customary rights and the customary marriage was conducted with the consent of all parents except FHL`s father for the reasons as stated in the application. The couple had cohabited as husband and wife and FHL was already six months pregnant. The order was sought by the applicant and the couple who wished to formalize their marriage. In the circumstances, it was a fit and proper case wherein the court should exercise its discretion to give the consent as it was impracticable to obtain the consent of the father. Where fraud is pleaded, proceedings should be begun by writ.

Cheong Kim Hock v Lin Securities (Pte) (in liquidation) [1992] 2 SLR 349 At the appeal hearing, Cheong’s counsel raised a procedural objection, arguing that the trial judge erred when he allowed LS to pursue their claim by way of originating summons when they should have proceeded by way of writ as there were substantial disputes as to facts. Held - There was no allegation to fraud in the originating summons. The facts relied on by LS were not in dispute and as such, they could properly proceed by way of originating summons. - See Cheong Kim Hock v Lin Securities: references to fraud not relevant for this purpose, case was really about undue influence and breach of statutory duty. Otherwise, a plaintiff has a choice: see O5, r 4. Khoo Kheng Sim v Khoo Chooi Leong & Anor [2002] 5 MLJ 345 The plaintiff applied, by way of amended originating summons, for, inter alia, orders that both the defendants were trustees of the estate of Khoo Koon Siong (`the deceased`); that the plaintiff was a child entitled to a [frac13] share of the deceased`s estate, and that both the defendants were the trustees of the plaintiff`s portion in the deceased`s estate of 11 lots of land, which the plaintiff alleged that both the defendants had become the registered owners of [half ] share each of the aforesaid 11 lots of land. The plaintiff`s affidavit dated 3 September 1999, in para 7 encl 7, raised the issue of `penipuan`, (ie fraud or deceit) in the first defendant`s application under the Small Estates Distribution Ordinance 1955. Counsel for the first defendant raised a preliminary objection that the mode of commencing these proceedings by way of originating summons was wrong as the plaintiff should have commenced a writ action. - Held : (1).If the plaintiff intended the word `penipuan` to mean deceit, then it was a claim made by the plaintiff for relief or remedy for a tort. It is trite law that deceit is an example of a cause of action in tort, in which case, O 5 r 2(a) of the Rules of the High Court 1980 (`the RHC`) would apply. On the other hand, if `penipuan` was used to mean `fraud`, then O 5 r 2(b) of the RHC would apply so that the mode of commencement would still be by way of writ. (2).In the case before the court, the plaintiff’s allegation of fraud was based merely on a single sentence in the most general term which did not specifically plead the particulars of fraud. This mere allegation was certainly falling short of the standard of pleading which was so well established in any matter raising an allegation of fraud.

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(3).The particulars of fraud should be specifically pleaded and the matter herein should have been commenced by way of a writ as opposed to an originating summons (see p 350A). Besides the allegation of fraud, there were numerous disputes of facts which would certainly call for the application of O 28 r 8(1) of the RHC for the purpose of enabling the court to order the proceedings herein to continue as if the cause or matter had been so begun by way of a writ. The proceedings herein therefore shall continue as if this cause or matter had been begun by way of a writ and the parties were ordered to deliver their pleadings in accordance with O 18 of the RHC

Procedure Originating Summons -

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Forms: Inter partes OS Ex parte OS Form under specific legislation (eg Bankruptcy Rules) O7 r 3(1): must contain statement of question for determination or concise statement of relief claimed, with sufficient particulars to identify a cause of action. Title includes description [‘in the matter of’] Duration of validity and renewal: same as in writ. See O7 r 5 – what applies to writ applies to OS. Order 7 rule 4 read with order 6 rule 3 issue for service outsid juris; order 7 rule 5 read with order 6 rule 4 – duration renewal

Hearing process for OS: diff fr trial process If inter partes, after D’s affidavits filed or time for filing affidavit expired. If ex parte, hearing date fixed on P’s application subject to time for filing affidavits. Hearing is in chambers. May apply for cross-examination. – depending on whether such a need on the facts D may counterclaim. Court may give directions for the hearing of the counterclaim. – If counterclaim, may want to convert to writ -

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• 2. Appearance required? • 3. Appearnce not required o O12 r 9 takes away reqt for appearance in OS o Just file affidavit if want to contest the OS. Unlike writ, which needs appearance

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only ex parte – no def present and inter parte os – presence of other party

No appearance to originating summons (O. 12, r. 9) 9. No appearance need be entered to an originating summons. • 1. Ex-parte – Writ of Distress (O. 75 r. 2(1)) Application for writ of distress (O. 75, r. 2) 2. —(1) Every application for a writ of distress must be made by ex parte originating summons supported by affidavit in Form 198. (2) Where the application is made by a duly authorised agent of the landlord, he must produce his written authority in Form 199. Writ of distress (O. 75, r. 3) 3. A writ of distress must be in Form 200.

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Applications to the Court (O. 88, r. 2) 2. —(1) Unless otherwise provided in the Act or this Order, every application under the Act must be made by originating summons and these Rules shall apply subject to this Order. • 2. No appearance required – Mortgage action (O. 83 r 1(1)) and 2(1) – 2(2) deleted – o appearance Application and interpretation (O. 83, r. 1) 1. —(1) This Order applies to any action (whether begun by writ or originating summons) by a mortgagee or mortgagor or by any person having the right to foreclose or redeem any mortgage, being an action in which there is a claim for any of the following reliefs: (a) payment of moneys secured by the mortgage; (b) sale of the mortgaged property; (c) foreclosure; (d) delivery of possession (whether before or after foreclosure or without foreclosure) to the mortgagee by the mortgagor or by any other person who is or is alleged to be in possession of the property; (e) redemption; (f) reconveyance of the property or its release from the security; (g) delivery of possession by the mortgagee. (2) In this Order, “mortgage” includes a legal and an equitable mortgage and a legal and an equitable charge, and references to a mortgagor, a mortgage and mortgaged property shall be construed accordingly. (3) An action to which this Order applies is referred to in this Order as a mortgage action. (4) These Rules apply to mortgage actions subject to the following provisions of this Order. Claims for possession (O. 83, r. 2) 2. —(1) In a mortgage action begun by originating summons, being an action in which the plaintiff is the mortgagee and claims delivery of possession or payments of moneys secured by the mortgage or both, the following provisions of this Rule shall apply. (2) [Deleted by S 806/2005] - Order 88 rules 2(1) – no appearance Applications to the Court (O. 88, r. 2) 2. —(1) Unless otherwise provided in the Act or this Order, every application under the Act must be made by originating summons and these Rules shall apply subject to this Order. (2) [Deleted by S 806/2005] (3) An application under section 394 of the Act may be made by ex parte originating summons. (4) An application under section 216 of the Act shall be made by writ. (5) In the case of a winding up application made under section 254 (1) (i) of the Act, the Court may order the proceedings to continue as if the proceedings had been begun by writ and may, in particular, order that — (a) pleadings be delivered or that the originating summons or any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof; (b) any persons be added as parties to the proceedings; and (c) that Order 25, Rules 2 to 7, shall, with the omission of so much of Rule 7 (1) as requires parties to serve a notice specifying the orders and directions which they require and with any other necessary modifications, apply as if there had been a summons for directions in the proceedings. (6) On or after the date of commencement of the Companies (Amendment) Act 2005 (Act 21 of 2005)* — (a) any application to confirm a reduction of the share premium account or capital redemption reserve fund of a company (being an application made before that date which is pending before the Court on that date) shall be treated as an application to confirm a reduction of the share capital of the company; and (b) any appeal against an order made in relation to an application to confirm a reduction of the share premium account or capital redemption reserve fund of a company (being an appeal made before that date which is pending before the Court on that date) shall be treated as an appeal against an order made in relation to an application to confirm a reduction of the share capital of the company. *30th January 2006 — Date of commencement of the Companies (Amendment) Act 2005 (Act 21 of 2005) – Interpleader (O. 17 r. 3(1) ) Mode of application (O. 17, r. 3) 3. —(1) An application for relief under this Order must be made by originating summons unless made in a

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pending action, in which case it must be made by summons in the action in Form 25 or 26 whichever is appropriate. (2) [Deleted by S 806/2005] (3) Subject to paragraph (4), an originating summons or a summons under this Rule must be supported by evidence that the applicant — (a) claims no interest in the subject-matter in dispute other than for charges or costs; (b) does not collude with any of the claimants to that subject-matter; and (c) is willing to pay or transfer that subject-matter into Court or to dispose of it as the Court may direct. (4) Where the applicant is the Sheriff, he shall not provide such evidence as is referred to in paragraph (3) unless directed by the Court to do so. -

Originating Summons Procedure

Application (O. 28, r. 1) 1. This Order applies to all originating summons. Hearing of originating summons (O. 28, r. 2) 2. All originating summonses shall be heard in Chambers, subject to any express provision of these Rules, any written law, any directions of the Court or any practice directions for the time being issued by the Registrar. Dispute as to jurisdiction (O. 28, r. 2A) 2A. —(1) A defendant who wishes to dispute the jurisdiction of the Court in the proceedings by reason of any irregularity in the originating summons or service thereof or in any order giving leave to serve the originating summons out of the jurisdiction or extending the validity of the originating summons for the purpose of service or on any other ground shall within 21 days after service of the originating summons and supporting affidavit or affidavits on him apply to the Court for — (a) an order setting aside the originating summons or service of the originating summons on him; (b) an order declaring that the originating summons has not been duly served on him; (c) the discharge of any order giving leave to serve the originating summons on him out of the jurisdiction; (d) the discharge of any order extending the validity of the originating summons for the purpose of service; (e) the protection or release of any property of the defendant seized or threatened with seizure in the proceedings; (f) the discharge of any order made to prevent any dealing with any property of the defendant; (g) 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 (h) such other relief as may be appropriate. (2) 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 within 21 days after service of the originating summons and supporting affidavit or affidavits on him apply to the Court for an order staying the proceedings. (3) An application under paragraph (1) or (2) must be made by summons supported by an affidavit verifying the facts on which the application is based and a copy of the affidavit must be served with the summons. (4) Upon the hearing of an application under paragraph (1) or (2), the Court may make such order as it thinks fit and may give such directions for its disposal as may be appropriate, including directions for the trial thereof as a preliminary issue. Supporting affidavits (O. 28, r. 3) 3. —(1) Unless otherwise provided in any written law, where the plaintiff intends to adduce evidence in support of an originating summons, he must do so by affidavit and must file the affidavit or affidavits and serve a copy thereof on every defendant not later than 7 days after the service of the originating summons. (2) Unless otherwise provided in any written law, in the case of an ex parte originating summons, the applicant must file a supporting affidavit or affidavits at the time of filing of the originating summons. (3) Where the defendant intends to adduce evidence with reference to the originating summons served on him, he must also do so by affidavit and the affidavit or affidavits must be filed and a copy thereof must be served on the plaintiff not later than 21 days after being served with a copy of the affidavit or affidavits by the plaintiff under paragraph (1). (4) No further affidavit shall be received in evidence without leave of the Court. Directions, etc., by Court (O. 28, r. 4) 4. —(1) The Court by whom an originating summons is heard may, if the liability of the defendant to the plaintiff in respect of any claim made by the plaintiff is established, make such order in favour of the plaintiff as the nature of the case may require, but where the Court makes an order under this paragraph against a defendant who does not appear at the hearing, the Court, if satisfied that it is just to do so, may rehear the originating summons.

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(2) Unless on the first hearing of an originating summons the Court disposes of the originating summons altogether or orders the cause or matter begun by it to be transferred to a District Court or makes an order under Rule 8, the Court shall give such directions as to the further conduct of the proceedings as it thinks best adapted to secure the just, expeditious and economical disposal thereof. (3) Without prejudice to the generality of paragraph (2), the Court shall, at as early a stage of the proceedings on the originating summons as appears to it to be practicable, consider whether there is or may be a dispute as to fact and whether the just, expeditious and economical disposal of the proceedings can accordingly best be secured by hearing the originating summons on oral evidence or mainly on oral evidence and, if it thinks fit, may order that no further evidence shall be filed and that the originating summons shall be heard on oral evidence or partly on oral evidence and partly on affidavit evidence, with or without cross-examination of any of the deponents, as it may direct. (4) Without prejudice to the generality of paragraph (2), and subject to paragraph (3), the Court may give directions as to the filing of evidence and as to the attendance of deponents for cross-examination and any other directions. Adjournment of originating summons (O. 28, r. 5) 5. —(1) The hearing of the originating summons by the Court may (if necessary) be adjourned from time to time, either generally or to a particular date, as may be appropriate, and the powers of the Court under Rule 4 may be exercised at any resumed hearing. (2) If the hearing of the originating summons is adjourned generally, the applicant or plaintiff, as the case may be, may restore it to the list on 2 days’ notice to all the other parties and any of those parties may restore it with the leave of the Court. Application affecting party in default of appearance (O. 28, r. 6) 6. [Deleted by S 806/2005] Counterclaim by defendant (O. 28, r. 7) 7. —(1) A defendant to an action begun by originating summons who alleges that he has any claim or is entitled to any relief or remedy against the plaintiff in respect of any matter (whenever and however arising) may make a counterclaim in the action in respect of that matter instead of bringing a separate action. (2) A defendant who wishes to make a counterclaim under this Rule must at the first or any resumed hearing of the originating summons by the Court, but, in any case, at as early a stage in the proceedings as is practicable, inform the Court of the nature of his claim and, without prejudice to the powers of the Court under paragraph (3), the claim shall be made in such manner as the Court may direct under Rule 4 or 8. (3) If it appears on the application of a plaintiff against whom a counterclaim is made under this Rule that the subject-matter of the counterclaim ought for any reason to be disposed of by a separate action, the Court may order the counterclaim to be struck out or may order it to be tried separately or make such other order as may be expedient. Continuation of proceedings as if cause or matter begun by writ (O. 28, r. 8) 8. —(1) Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that pleadings shall be delivered or that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof. (2) Where the Court decides to make such an order, Order 25, Rules 2 to 7, shall, with the omission of so much of Rule 7 (1) as requires parties to serve a notice specifying the orders and directions which they require and with any other necessary modifications, apply as if there had been a summons for directions in the proceedings and that order were one of the orders to be made thereon. (3) This Rule applies notwithstanding that the cause or matter in question could not have been begun by writ. (4) Any reference in these Rules to an action begun by writ shall, unless the context otherwise requires, be construed as including a reference to a cause or matter proceedings in which are ordered under this Rule to continue as if the cause or matter had been so begun. Order for hearing or trial (O. 28, r. 9) 9. —(1) Except where the Court disposes of a cause or matter begun by originating summons in Chambers or orders it to be transferred to a District Court or makes an order in relation to it under Rule 8 or some other provision of these Rules, the Court shall, on being satisfied that the cause or matter is ready for determination, make an order for the hearing or trial thereof in accordance with this Rule. (2) Order 34, Rules 1 to 5, shall apply in relation to a cause or matter begun by originating summons and to an order made therein under this Rule as they apply in relation to an action begun by writ and shall have effect accordingly with the necessary modifications and with the further modification that for references therein to the summons for directions there shall be substituted references to the first or any resumed hearing of the originating summons by the Court.

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Failure to prosecute proceedings with despatch (O. 28, r. 10) 10. —(1) If the plaintiff in a cause or matter begun by originating summons makes default in complying with any order or direction of the Court as to the conduct of the proceedings, or if the Court is satisfied that the plaintiff in a cause or matter so begun is not prosecuting the proceedings with due despatch, the Court may order the cause or matter to be dismissed or may make such other order as may be just. (2) Paragraph (1) shall apply, with any necessary modifications, in relation to a defendant by whom a counterclaim is made under Rule 7 as it applies in relation to a plaintiff. (3) Where, by virtue of an order made under Rule 8, proceedings in a cause or matter begun by originating summons are to continue as if the cause or matter had been begun by writ, paragraphs (1) and (2) shall not apply in relation to the cause or matter after the making of the order. Abatement, etc., of action (O. 28, r. 11) 11. Order 34, Rule 6, shall apply in relation to an action begun by originating summons as it applies in relation to an action begun by writ. Failure of plaintiff to prosecute? (solutions similar to writ situations) O.28, r.10: Court may dismiss or make any order it thinks just [eg, unless orders] Halls v O’Dell 2 [1992] WLR 313: Birkett v James principles apply: inordinate, inexcusable delay causing substantial risk to fair trial or prejudice to the defendant. Discontinuance: O.21, r.2(5); O.21, r.2(6). – Court may extend, reinstate. See Moguntia-Est Epices – how court shld treat application to reinstate – Discontinuenace – see O21 – if x do anything for yr, action lapses. Can apply to extend or after its lapse, need exceptional circumsntacs to reinstate - SA v Sea Hawk Freight Pte Ltd [2003] SGHC231 Facts This action arose from the loss of certain cargo that P.T. Putrabali Adyamulia (‘Putrabali’) had agreed to sell to the plaintiffs, Moguntia-Est Epices S.A. The defendants, Sea-Hawk Freight Pte Ltd, were the contractual carriers. The plaintiffs refused to pay for the cargo, so Putrabali commenced arbitration proceedings against them in London. Putrabali obtained an award in their favour (‘the arbitral award’). The plaintiffs appealed. To preserve time, both Putrabali and the plaintiffs instituted proceedings against the defendants in the High Court of Singapore. The plaintiffs did so by filing this writ on 3 January 2001 but refrained from serving the writ on the defendants. This was to save costs while they awaited the outcome of their appeal against the arbitral award. However, at a pre-trial conference on 7 February 2001, the plaintiffs were ordered to serve the writ by 21 March 2001. Service was duly effected on 20 March 2001. In their letter accompanying the writ, the plaintiffs’ solicitors confirmed their agreement to ‘hold [their] respective hands in the proceedings pending settlement negotiations.’ On 10 April 2000, the plaintiffs’ appeal against the arbitral award succeeded. No efforts were made to move this action forward. On 20 February 2002, the defendants settled claims made against them by various other cargo owners on the advice that this action may have already been automatically discontinued by operation of law. On 14 May 2003, the plaintiffs’ solicitors informed the defendants’ solicitors that the plaintiffs intended to reinstate the action. This was because Putrabali had successfully appealed to the English High Court against the arbitral award. On 12 June 2003, the plaintiffs filed an application for this action to be reinstated pursuant to O 21 r 2(8) of the Rules of Court. The assistant registrar dismissed their application. The plaintiffs appealed. The issue was in what manner the court should exercise its discretion to reinstate a discontinued action under O 21 r 2(8). The plaintiffs argued that exceptional circumstances existed which justified reinstatement. Held, dismissing the appeal: (1) The guidelines set out in Bannister v SGB plc [1997] 4 All ER 129 could be applied to an application under our O 21 r 2(8), with one modification to account for the difference in our civil procedure rules with regard to the ‘trigger date’ from which time begins to run for automatic discontinuance: at [19]-[20]. (2) There was no merit in the plaintiffs’ argument that there was an agreement for a moratorium after service. Even if the parties had the automatic discontinuance rule in mind on 20 March 2001, there was nothing in O 21 r 2(8) to indicate that parties could suspend its operation by agreement: at [23]. (3) Applying the first step of the guidelines, the plaintiffs’ failure to serve the writ before 7 February 2001 was not a significant failure to conduct the case with expedition: at [25]. (4) Applying the next step of the guidelines, the plaintiffs had not shown that their inaction before June 2003 was excusable. No explanation was offered for their failure to do anything before that time: at [26]-[29].

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(5) The justice of the case was against reinstatement. The defendants were prejudiced since they had already settled the other claims against them. They would lose an accrued defence of time bar if the action was reinstated. There was some doubt as to whether the plaintiffs did have title to sue the defendants, which meant that any action which the plaintiffs might bring against the defendants would be fatally flawed: at [30].

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