JUDGMENTBY: TAN AH TAH J, BUTTROSE AND WEE CHONG JIN JJ

TAN AH TAH J The Franco-British Food Supply Co. Ltd. is a company incorporated in Singapore carrying on business as a ships agent and supplier and in the course of its business acted as agent of the motor ships the "Vanda" and the "Volubilis" which are both registered in Marseilles, France. It will be convenient to refer to this company as the plaintiffs. The registered owner of the two motor ships is Jacques Etienne Prat who, according to the evidence, is resident in France. In this judgment he will be referred to as the defendant.

On the 29th October 1958 the plaintiffs commenced an Admiralty action in rem (Admiralty Suit No. 14 of 1958) against "the owners and other persons interested in the motor ship Vanda" claiming the sum of $ 27,956.74 for necessaries supplied and monies advanced for repairs to the "Vanda" at the Port of Singapore between the months of December 1957 and October 1958 inclusive. By an amendment made pursuant to an order of Court dated the 23rd January 1959 the claim was increased to $ 62,280.73.

On the 4th December 1958 the defendant commenced an action (Suit No. 1553 of 1958) against the plaintiffs claiming the sum of $ 91,059.61 which was alleged to be the amount due by the plaintiffs as the defendants agent for the "Volubilis" in respect of the period from November 1957 to October 1958.

The defendant does not appear to have come to Singapore in connection with this litigation. His affairs in Singapore were looked after by his attorney Georges Ezaoui.

The Admiralty action came on for hearing on the 25th May 1959. On the third day of the trial it became apparent that the two actions could not conveniently be heard separately and on the application of the defendant an order was made whereby the two actions were consolidated and the plaintiffs were given the conduct of the consolidated action. It is unnecessary to describe in detail what transpired after this order was made. It is sufficient to say that the consolidated action was heard from time to time, several adjournments having to be granted owing to the length of the trial.

The next step in the consolidated action which is relevant for the purpose of this judgment took place on the 16th November 1959. On that day, on the application of the plaintiffs, an order was made for discovery of certain documents which were considered to be material to matters in issue in the proceedings. On the 18th November 1959 Georges Ezaoui made an affidavit disclosing a number of documents.

On the 23rd November 1959, when the hearing of the consolidated action was resumed, the plaintiffs contended that the affidavit as to documents made by Georges Ezaoui on the 18th November 1959 was incomplete. The learned trial Judge directed the plaintiffs to adduce evidence to show that there had been incomplete discovery of documents. Evidence was given on behalf of both parties and, after hearing argument, the learned trial Judge on the 2nd December 1959 made an order directing the defendant by himself, his servant or agent to make a further affidavit as to certain documents within 42 days after service of the order on his solicitors. The hearing was then adjourned to a date to be fixed by the Registrar.

A copy of the order made on the 2nd December 1959 was duly served on the defendants solicitors on the 17th December 1959, but it is common ground that it did not bear the indorsement required by Order XXXIX rule 5 of the Rules of the Supreme Court which reads as follows:--

5. -- Every judgment or order made in any cause or matter, requiring

any person to do an act thereby ordered, shall state the time, or

the time after service of the judgment or order, within which the

act is to be done, and upon the copy of the judgment or order

which is served upon the person required to obey the same there

shall be indorsed a memorandum in the words or to the effect

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