The Management Corporation - Strata Title Plan No. 4572 v Kingsford Development Pte. Ltd. & 3 Ors

Facts

The claimant, the management corporation of a condominium at Hillview Rise, sued the developer, contractors and others in Originating Claim No 499 of 2022 for breach of contract and negligence over alleged defects. The fourth defendant, ADF Waterproof Pte Ltd, was named as the "Specialist" in two waterproofing warranties given in 2017, which the developer had assigned to the management corporation. The claimant said these warranties made the fourth defendant jointly liable with the contractor for any defects in the works for 10 years.

The originating claim was served on the fourth defendant on 16 January 2023 by leaving it at its registered address, but without the notice of intention to contest or not contest in Form 10 that the note in Form 8 says is to be attached. The fourth defendant filed nothing within 14 days, and judgment was entered against it on 3 February 2023. At a case conference on 22 February 2023, it was directed to file any setting-aside application by 22 March 2023, which it did. It argued that the judgment was irregularly obtained, because Form 10 was not attached and because service was late, and alternatively that it had a defence raising triable issues. The claimant argued the judgment was regular, that any irregularity application was out of time under O 3 r 2(10) of the Rules of Court 2021, and sought security of $3 million if the judgment were set aside.

Issues

1. Whether failing to attach Form 10 to the originating claim made the default judgment irregularly obtained
2. Whether the setting-aside application was filed out of time under O 3 r 2(10)
3. Whether the judgment should be set aside as of right or on the merits, and on what conditions

Holding

Assistant Registrar Desmond Chong granted the application and set aside the default judgment, on condition that the fourth defendant provide security of S$80,000 by way of a solicitor's undertaking.

Reasoning

Following Mercurine Pte Ltd v Canberra Development Pte Ltd [2008] 4 SLR(R) 907, a judgment is irregularly obtained if the claimant breached a procedural rule relevant to its entry; whether the defendant suffered real unfairness belongs to the next stage. Not every departure from Form 8 breaches O 6 r 5(1), but omitting a material part does. Form 10 shows a lay defendant what the notice is and lets it file one without a lawyer, so leaving it out defeated a core purpose of the form; the judgment was therefore irregularly obtained. The court added that breaches of practice directions can also be irregularities, and that defendants should state on affidavit which basis they rely on. There was no breach of O 6 r 5(6), as reasonable steps to serve were taken by 13 January 2023.

Time under O 3 r 2(10) does not wait until a party gets legal advice; on its own case the fourth defendant should have applied by 24 February 2023. But the registrar's direction covered the filing, and an extension would have been granted anyway.

The judgment was not set aside as of right because there was no egregious procedural injustice: the form served said plainly that a notice had to be filed within 14 days, and a director's limited English was no excuse for a company. On the merits, the warranty's wording supported the claim, but the fourth defendant was not bound to lose since it disputed that some defects fell within its scope. Its defence, however, was tentative and depended on an inspection it had had ample time to carry out, so conditions were justified. Weighing the unquantified claim and the contested defects, the court set security at $80,000, which the fourth defendant confirmed it could provide.

From the judgment