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FEATURES
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setting the case down. It does not enable the court to deal with matters which do not arise in the course of working out the judgment, or to vary the terms of the order except possibly on proof of change of circumstances. Should the declaration be omitted, application may be made to have the judgment rectified by inserting it. It will not, however, be made or implied in favour of a defendant as against whom the claim has been dismissed for any other purpose than for enforcing the terms of the order, nor in favour of a claimant whose cause of action disappeared before trial but who fears that the circumstances giving rise to the cause of action may recur. Thus, in so far as it is necessary to work out the order, all orders of the court carry with them inherent liberty to apply to the court2 and there is no need to reserve expressly such liberty in the case of orders which are not final.3 Even in the case of final orders or judgments that have been perfected, the Malaysian case of Sungei Biak Tin Mines Ltd v Saw Choo Theng & Anor (No 2)4 held that liberty to apply was to be implied. Although inherent in all orders of court, such liberty as the applicant may be advised, however, should be expressly reserved in the case of a final judgment5 and if it is omitted, the judgment should be rectified by inserting it. Thus, the liberty to apply provision in an order of court is for the purpose of working out the order and not of varying it. Indeed, the locus classicus for this proposition is Cristel v Cristel,6 which was followed by Justice Rubin in Tan Yeow Khoon & Anor v Tan Yeow Tat & Anor (No 2)7 and by Choo Han Teck JC (as his Honour then was) in Koh Ewe Chee v Koh Hua Leong & Anor.8 The Court of Appeal in Chia Chew Gek v Tan Boon Hiang9 also held the same. These cases are discussed below. In Chia Chew Gek v Tan Boon Hiang,10 the Court of Appeal considered the effect of a conditional order by consent and a liberty to apply provision. The consent order dealt with, among others, two matrimonial properties owned by the husband and wife. Subject to the approval of the Housing and Development Board (HDB), the parties were ordered to transfer their title in the properties such that each was to have sole title to one property. It was also expressly ordered that in the event HDB did not give such approval, the parties were at liberty to apply. Unfortunately, HDB refused to give approval and the consent order could not be carried into effect. The husband then filed a summons-in-chambers resulting in a principal order that the question of division of the matrimonial property be brought for determination before the court. This amounted to a variation of the previous order. On various grounds, the wife appealed against this order. One of the grounds was that the liberty to apply provision did not confer upon the court the right to vary the earlier order. The Court of Appeal found that the husbands subsequent application was altogether a fresh application. Since the consent order was a conditional order that was unworkable, the Court of Appeal said that it was negated and it was proper for the husband to make a fresh application. The application did not come under the umbrella of the liberty to apply provision of the consent order. The Court of Appeal also said that if the consent order was not conditional upon HDB giving approval, the husband could still apply under the liberty to apply provision. In the event, the court would be unable to vary the order but would probably have ordered the parties to retain the value of the respective properties without affecting the division of the value under the original order. In Tan Yeow Khoon & Anor v Tan Yeow Tat & Anor (No 2),11 by an order of court, an expert was appointed to examine the accounts of three companies owned by the parties. The expert then drafted the terms of reference but the parties could not agree on the incorporation of certain terms. The plaintiffs applied to the court under the liberty to apply provision contained in the order of court to resolve the disagreement. The court held that:
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When an incorporation is entirely reasonable, the court would accordingly so order. If an incorporation was to sustain and work out the order earlier made or is nothing more than a complementary or enabling direction to work out the judgment of the court, the incorporation would be allowed. Even if the further direction issued by the court were to be regarded as a variation, such a direction was intended only to succour the original order and would be allowed.12 The court felt that it was regrettable that the letter and spirit of the order as well as the directions given by the court had been entirely lost on the plaintiffs. The court was of the view that the plaintiffs attempts to forestall the expert from inquiring into the amounts owing to the defendants were founded on plain unreason and obduracy. Thus Tan Yeow Khoon is authority for the following proposition: a liberty to apply provision is for working out the order and not for varying it. Even if a subsequent order or direction were to be regarded as a variation, it would still fall within the ambit of the liberty to apply provision if the order or direction were intended only to succour the original order. A party who unreasonably forestalls giving effect to an order or judgment risks facing the consequences of an application under the liberty to apply provision by the other party. Based on Tan, if an appellant appeals against a subsequent order, it would be insufficient for the appellant to show that the subsequent order was a variation of the original order. In addition, the court must be satisfied that the subsequent order was not intended only to succour the original order. In Koh Ewe Chee v Koh Hua Leong & Anor,13 the learned Choo Han Teck JC (as his Honour then was) held that what amounts to a variation depends on the context of the individual case. Thus, the question of variation of an original order is a question of fact that depends on the circumstances. In Koh, the plaintiff and the two defendants were brothers. Their father founded a partnership. Following the death of their father, the defendants served a notice of dissolution of the partnership. The plaintiff then applied to appoint two named receivers and managers to realise the partnership properties. TQ Lim JC granted the plaintiffs application. The order included a liberty to apply provision. Subsequently, the plaintiff applied by way of a summons-in-chambers under Lim JCs liberty to apply order for an order that the court declare that the firm was a sole proprietorship. In addition, he also prayed for an order to discharge the receivers and for a declaratory order that the defendants were holding on resulting trust the firms property and that they be ordered to transfer title to him. Choo JC, dismissing the application, held that a liberty to apply order was not the right avenue on which to proceed since the orders sought were not minor improvements. His Honour also held that such an application was not the appropriate forum to unravel the dispute. With regard to the nature of the liberty to apply provision, he held that: The liberty to apply order is a judicial device intended to supplement the main orders in form and convenience only so that the main orders may be carried out. Within its ambit, errors and omissions which do not affect the substance of the main orders may be corrected or augmented, but nothing must be done to vary or change the nature or substance of the main orders. The variation of orders is governed by other rules. What amounts to a variation depends on the context of the individual case. Even if parties apply by consent to vary the original order under a liberty to apply order, where substantial changes are made to the original or main orders, the proper mode and procedure must be adopted The learned Choo JC also said:
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Notwithstanding the English authority of reasonably long standing, that is, Cristel v Cristel [1951] 2 KB 725 and the more recent affirmation of the judicial statement therein by the High Court in England in Bairstow v Queens Moat Houses plc (Unreported), 19 September 1997) and here in Tan Yeow Khoon v Tan Yeow Tat (No 2), the liberty to apply order seems to remain poorly understood. The important statement of Somervell LJ in the Cristel case was (at p 730), ... prima facie the words Liberty to apply refer, in my opinion, to the working out of the actual terms of the order. Or, as Denning LJ in the same case said (at p 731), It can only do what is necessary to carry the agreement into effect ... In my view, the liberty to apply order, which is really, a judicial device not dissimilar to its procedural cousin the slip rule, is intended to supplement the main orders in form and convenience only so that the main orders may be carried out. To this end, errors and omissions that do not affect the substance of the main orders may be corrected or augmented, but nothing must be done to vary or change the nature or substance of the main orders because the variation of orders are governed by other rules, depending on the context of the individual case. For example, in a matrimonial matter, the court may have no power to vary unless there is a change of circumstances, or if it was made with the consent of the other party. It is true that sometimes solicitors may be confused as to the ambit of a liberty to apply order. There are, in my view, two main reasons for this. First, as I have just said, what amounts to a supplemental order to give effect to the main orders can only be appreciated in the context of the individual case. Thus, what appears to be a further order to give effect to the original order in one case may appear as a variation in a different context. Second, parties often, by consent, apply for a variation of the original order under a liberty to apply order. But where substantial changes are intended to be made to the original or main orders the proper mode and procedure must be adopted. An application under a liberty to apply order is, therefore, not the way. This present case before me is a clear example of why that is so.
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out the order or judgment and not for varying it.17 Based on Kanawagi, it would appear that the liberty to apply for consequential orders provision is also implied.
Conclusion
In summary, it is submitted that the nature and scope of the liberty to apply provision is as follows: The liberty to apply provision is implied in all orders and judgments, whether interlocutory or final, in so far as it is necessary to work out the main provisions or for implementing or giving effect to the same. However, in the case of final orders or judgments, such liberty to apply as may be advised,
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should be expressly reserved. If a liberty to apply provision is expressly reserved, it is prima facie for working out the main provisions of the order or judgment. However, its true effect depends on the true construction of the order or judgment. An order pursuant to a liberty to apply provision, in so far as it is given to work out or for implementing or giving effect to the main provisions of an order or judgment, must not vary the terms of the original order. Whether there has been a variation depends on context. Even if the order amounts to a variation, it is allowed if it does nothing more than to succour the terms of the original order. If the liberty is for consequential orders, it is merely for the purpose of working out the main provisions of the order or judgment or for giving effect to the findings of the court. On the other hand, if the provision is for such liberty as may be advised, it may not necessarily be for the purpose of working out the main provisions of the order or judgment. In the context of an interlocutory injunction, the provision is for the purpose of varying or discharging the order on grounds as may be advised. A liberty to apply provision made in the context of a statutory regime, such as those under the Companies Act or Womens Charter, is for working out the main provisions only and not for varying them. The power to vary is conferred by the relevant statutory provisions. L Kuppanchetti/Koh Chia Ling Alban Tay Mahtani & de Silva E-mail: kuppanchetti@atmdlaw.com.sg/kohchialing@atmdlaw.com.sg Endnotes
1 2 3 4 5 6 7 8 9
Halsburys Laws of England, 4th Ed, Reissue, Vol 37, 2001, para 1230. Ibid para 1230, citing, inter alia, Fritz v Hobson (1880) 14 Ch D 542 at 561 and ChandlessChandless v Nicholson [1942] 2 All ER 315 at 317, CA. Ibid para 1230, citing Penrice v Williams (1883) 23 Ch D 353. [1970] 2 MLJ 226. Halsburys Laws of England 4th Ed, Reissue, Vol 37, 2001, para 1230, citing Kevan v Crawford (1877) 6 Ch D 29 at 42, CA; Pawley v Pawley [1905] 1 Ch 593. [1951] 2 KB 725; [1951] 2 All ER 574. [2000] 3 SLR 323. The plaintiffs appeal vide CA 148/99 was heard and dismissed by the Court of Appeal (LP Thean and Chao Hick Tin JJA) on 23 February 2000. [2002] 3 SLR 643. [1997] 2 SLR 209.
10 Ibid. 11 Ibid. 12 Citing Tay Ek Seng & Ors v Tay Cho Koh & Ors, a decision of the Malaysian Federal Court. 13 [2002] 3 SLR 643. 14 See for example Contour Optik & Ors v Pearls Optical & Anor Suit 147/2000, Suit 371/2001. 15 Ibid.
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18 Stephen Geoffrey Kirby v Telegraph Plc and Jane Thynne [1998] EWCA Civ 1394 (13 August 19 Kamla Lal Hiranand (mw) v Lal Hiranand [2003] SGHC 171. This case appears also to hold that if
the main provision of an order is no longer valid, the liberty to apply provision would cease to have application.
20 See also Tong Lee Hwa & Anor v Chin Ah Kwi and Tong Chong Fah v Chin Ah Kwi [1971] 2 MLJ
75; Public Bank Bhd v Chan Tak Kow [1988] 3 MLJ 330.
21 See for eg Raindrop Data System v Systemics [1988] FSR 354. 22 Ibid at page 366. 23 See Halsburys Laws of Singapore, Vol 4, Civil Procedure, 2002, para 50.364, for the various
grounds that can be relied upon to vary or discharge an interlocutory injunction even if there is no express liberty to apply provision.
24 See for example Order of Court dated 7 May 2003 given in Originating Summons 653/2003/D,
giving the applicant liberty to convene a meeting of unsecured creditors to approve a scheme of arrangement.
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