CHAN SIEW KIAT v LEE JUNG PENG

Case Significance

Illustrates the protection of the right to be heard against a procedural default, the High Court reversing a Sessions Court's refusal to set aside an order for non-attendance where it had mischaracterised a peremptory order, misapplied the test, and failed to address proper service of the solicitors' withdrawal.

This High Court decision is an appeal against a Sessions Court's refusal to set aside an order for non-attendance and the consequential judgment entered against the appellant, and it examines the nature of a peremptory order, the requirements of notice, and the right to be heard. The respondent had sued in the Sessions Court on an alleged failure to honour a settlement obligation, and the appellant, who had initially participated through solicitors, was affected when his solicitors filed a notice of withdrawal that, he said, was never properly served on him under Order 64 rule 5 of the Rules of Court 2012, leaving him unaware of the procedural expectations. After the appellant was absent from several case-management dates, the Sessions Court issued what it termed an "unless order" and then, on his further non-attendance, granted an order for non-attendance under Order 34 rule 6. The Sessions Court later dismissed the appellant's application to set that order aside, holding that he had wilfully failed to attend, that he should have appealed rather than applied to set aside, that his defence was a bare denial, and that the delay was unexplained. On appeal, the High Court found a cumulative series of errors: the Sessions Court had mischaracterised its order as an unless order with automatic consequences, applied the wrong legal test, relied on material not in affidavit evidence, failed to assess whether the withdrawal and hearing notice had properly been served, failed to consider the appellant's explanation, and placed undue emphasis on the perceived weakness of the defence — whereas the true question was not whether the defence would succeed but whether the appellant should be heard on the merits. Holding these errors a material misdirection warranting reversal, the court allowed the appeal, set aside the order for non-attendance and all consequential orders, and remitted the matter to the Sessions Court for trial on the merits. The judgment illustrates the protection of the right to be heard against procedural default.