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262 Singapore Academy of Law Journal (2003) the non-party would not “require much”, 83 and that it would be “very easy” 84 to obtain leave. 111 The Malaysian Court of Appeal, however, in the case of Tradium Sdn Bhd v Zain Azahari bin Zainal Abidin & Anor 85 was of the view that these words, i.e. that the non-party would not “require much” to obtain leave to appeal, were spoken at a time “when the wide jurisdiction to permit intervention in all original proceedings now contained in O 15 r6(2) 86 was absent.” 87 , and held that leave should not be granted to a non-party to intervene in a case in order to appeal the decision if he could have applied to be joined as a party at an earlier stage but failed to do so. 112 It is submitted, however, that the more lenient view expressed in In re Securities Insurance Company, rather than the strict view in Tradium should be followed. 113 In the Tradium case 88 , supra, the Malaysia Court of Appeal had observed: The applicant admittedly did not wish to face an order for costs. Nevertheless, while enjoying that protection [i.e. of being a nonparty], it attacked the first respondent’s arguments before the 83 84 85 86 87 88 per Lindley LJ, at p 413. per Kay LJ, at p 414. [1995] 1 MLJ 668. This is equivalent to Order 15 Rule 6(2) of the Rules of Court which allows the court, either of its own motion, or upon application to, inter alia, order any person to be added as a party to an action. Per Gopal Sri Ram JCA. The applicant in this case was a property developer. The plans for one of its proposed developments, although approved by the second respondent, met with opposition from the first respondent. The first respondent applied to the High Court for leave to apply for an order of certiorari to quash the second respondent’s approval. Although the grant of certiorari would affect the applicant financially, it made no attempt to intervene to have itself added as a party as it did not wish to face an order for costs in the event the first respondent succeeded in its application. The applicant had been served with the relevant papers, although there was no application to join it as a party. However, it participated in the proceedings and made submissions in the matter. The High Court then granted the certiorari and quashed the approval. The second respondent appealed against the decision. The applicant then applied to add himself as a party to appeal against the decision that was rendered, for the purpose of appealing separately to the Court of Appeal. This application failed, but the applicant did not appeal the decision. It then moved the Court of Appeal by a notice of motion, for inter alia, an order that it be permitted to intervene and take part as an intervener in the appeal. The Court of Appeal refused the motion.
15 SAcLJ Matrimonial Assets and the 3 rd Party 263 judge. In my view, the applicant was no better than a sniper who, whilst concealed and protected by the foliage in which he hides, proceeds to take pot-shots at his unsuspecting opponent. He was not prepared to take on all the risks of a full battle and, when the event went against him, decided to change his role. Ought he to be permitted to do this I think not: for both principle and authority are against him. (per Gopal Sri Ram JCA) 114 In Tradium, the 3 rd party appears to have been treated as if he was a party (by being allowed to make submissions in the proceedings and having orders made which affected him financially)—except that he was in an even better position, because as a non-party, he did not have the risk of facing an order for costs. Because it considered that the nonparty had been in a better position than a party would have been, the court decided that he could not appeal against the decision made. It is submitted, however, that the basis of this reasoning is flawed, firstly because the non-party should not have had the locus standi to make submissions in court and should therefore have been prevented from taking “pot-shots at his unsuspecting opponent”. The non-party should never have been placed in a better position than a party. Secondly, no orders should have been made which affected the non-party’s pecuniary interests without making him a party to the proceedings first. 89 It is therefore submitted that the views expressed by the Court of Appeal in Tradium regarding the non-party’s rights of appeal should not be followed. (Admittedly, in In Re Securities, supra, an order was made against persons whose interests as creditors were affected by the scheme of arrangement without their being joined as parties. But this may be explained on the basis that in a company’s winding up situation, there may be many creditors, and it would not have been practical to join every single one of them as parties before the court was able to approve the scheme of arrangement.) 90 89 90 In this regard, see Sections 4.4.3-4.4.5 above. Kay LJ had observed in In Re Securities, supra, that the appellants in this case had the opportunity of joining themselves as parties to the proceedings, but failed to do so, and that in the circumstances, the case was not one in which leave to appeal ought to be given. It is submitted that this comment should be disregarded firstly on the basis that it is dicta, since the court was not asked to decide whether the appellants should be granted leave to appeal, but whether they needed leave to appeal. Secondly, the comment can be explained on the basis that in a company’s winding up case, there could potentially be many creditors. It would be commercially unviable if a scheme of arrangement that had been agreed to by those creditors who attended the creditors’ meeting could be appealed against by any creditor who had notice of, but chose not to, attend the meeting. Thus, for practical reasddons, [continued next page]
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