Professional Documents
Culture Documents
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
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
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
- 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.
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.
- • 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.
- 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.
- 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.
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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.
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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– 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
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.
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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.
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
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
- • 1. Ex-parte
o only ex parte – no def present and inter parte os – presence of other party
- • 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
• 1. Ex-parte
– Writ of Distress (O. 75 r. 2(1))
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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
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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.
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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.
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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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