BCBC Singapore Pte Ltd v PT Bayan Resources TBK

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Judith Prakash JCA,Jonathan Hugh Mance IJ
• Judgment Date: 23 October 2023
• Docket Number: Civil Appeal from the Singapore International Commercial Court No 4 of 2023
• Court: Court of Appeal (Singapore)

BCBC Singapore Pte Ltd and another

and

PT Bayan Resources TBK and another

[2023] SGCA(I) 8

Sundaresh Menon CJ, Judith Prakash JCA and Jonathan Hugh Mance IJ

Civil Appeal from the Singapore International Commercial Court No 4 of 2023

Court of Appeal

Civil Procedure — Costs — Principles — Plaintiff withdrawing claim at earlier stage of proceedings — Court adjudicating only co-plaintiff's separate claim — Whether unsuccessful co-plaintiffs jointly and severally liable for costs

Civil Procedure — Costs — Principles — Successful defendants only prevailing on narrow point of causation at final tranche of suit — Defendants raising decisive argument through late amendment to pleadings — Whether court should depart from general rule that costs follow event — Whether plaintiffs entitled to costs up to date of amendment of pleadings — Whether court should adopt issue-based approach — Order 110 r 46 Rules of Court (2014 Rev Ed)

Held, allowing the appeal:

(1) Order 21 r 22(1)(b) of the Singapore International Commercial Court Rules 2021 did not remove the requirement that a party seek permission to raise a new point on appeal. In requiring parties to “highlight” in their written cases new points not raised before the SICC, it served to afford the appellate court an opportunity to consider the new points in advance and assess whether permission ought to be granted for them to be raised: at [34].

(2) Permission was granted to the appellants to raise Argument 1 as a new point on appeal. It was a question of principle that did not entail any further evidence being led or facts being found. Permitting the point to be taken would not cause prejudice to the respondents, who mounted full arguments in the appeal. Crucially, the relevance of Argument 1 might only have become apparent to the appellants after the third tranche appeal was decided, where the court was critical of how the Winding Up Defence had been pleaded. The third tranche appeal was decided after the parties had filed their submissions on costs in the SICC: at [36].

(3) The Winding Up Defence could and should have been raised earlier. This late amendment substantially altered the case the appellants had to meet and had a decisive impact on the outcome of the case. Had the Winding Up Defence been pleaded earlier, it was not at all clear that the appellants would have run their case in the same way: at [37] to [44].

(4) However, the appellants were not awarded their costs of S 1 up to 21 January 2020, with the respondents being awarded their costs thereafter. There were practical difficulties with applying such a time-based costs order. Instead, and considering that the SICC's exercise of its discretion in favour of a discounting approach had not been shown to be in error, the 40% discount applied by the SICC was increased to 70%. Argument 3 was thus accepted in part: at [31], [45] and [46].

(5) Argument 2 was rejected. In an appeal, it was insufficient for the appellants to merely show that the issue-based approach could apply, or that it would have been preferable to adopt such an approach. Under O 110 r 46(1) of the Rules of Court (2014 Rev Ed), which applied to S 1, the SICC not only had a discretion to depart from the starting point that costs follow the event, but also the discretion to choose and adopt the approach as to the type of costs order that it considered would best meet the justice of the case. Contrary to the appellants' case, the SICC did not consider itself precluded from applying the issue-based approach once it determined that there was an overall winner in S 1, and there was consequently no error in this regard. Instead, it considered both the issue-based approach and the discounting approach, evaluated their relative merits, and decided that the latter was the more appropriate approach for S 1: at [27] to [30].

(6) The view that the SICC was justified in not adopting the issue-based approach was reinforced by the approach's various shortcomings. While objections based on principle were not insurmountable, difficulties with the approach's practical application presented a more formidable obstacle. Five such concerns included: (a) the difficulty of separating issues; (b) the difficulty of abstraction in defining issues; (c) the cost of granularity when assessing costs; (d) the difficulty of attributing costs incurred to individual issues; and (e) the problem of duplication in having to assess the costs of both sides to the dispute. While an issue-based approach might still be appropriate in some cases, such as in intellectual property litigation, courts considering such orders ought to seriously consider the challenges that could come in the wake of making such orders, and where possible, consider means of mitigating those challenges: at [59] to [73].

(7) Argument 4 was accepted, and BCBC was to be liable only for the costs of its own claim against BI. There was good reason to depart from the general rule that co-plaintiffs should both be jointly and severally liable for costs. BCBC had pursued what was, in essence, a separate claim against the respondents and not a common claim with BCBCS. The bases of the appellants' claims were different. More importantly, BCBC had withdrawn its claim at an earlier stage and ceased to participate in S 1, such that the SICC was only concerned with adjudicating BCBCS' claim: at [91] to [94].

Case(s) referred to

Abhilash s/o Kunchian Krishnan v Yeo Hock Huat [2019] 1 SLR 873 (folld)

AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1999] 1 WLR 1507 (refd)

Australian Securities and Investments Commission v Select AFSL Pty Ltd (No 3) [2023] FCA 723 (refd)

BCBC Singapore Pte Ltd v PT Bayan Resources TBK [2023] 4 SLR 1, SICC (refd)

BCBC Singapore Pte Ltd v PT Bayan Resources TBK [2023] 2 SLR 1, CA (refd)

Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137 (refd)

Budgen v Andrew Gardner Partnership [2002] EWCA Civ 1125 (refd)

Burchell v Bullard [2005] 3 Costs LR 507 (refd)

Comfort Management Pte Ltd v OGSP Engineering Pte Ltd [2022] 5 SLR 525 (refd)

Cyberworks Audio Video Technology Ltd v Mei Ah (HK) Co Ltd [2020] HKCU 3816 (refd)

Dansk Rekylriffel Syndikat Aktieselskab v Snell [1908] 2 Ch 127 (refd)

Dextra Asia Co Ltd v Mariwu Industrial Co (S) Pte Ltd [2005] SGHC 85 (refd)

EFG Bank AG, Singapore Branch v Surewin Worldwide Ltd [2022] SGHC 26 (refd)

Element Six Technologies Ltd v IIa Technologies Pte Ltd [2020] SGHC 140 (refd)

Elgindata Ltd (No 2), Re [1993] 1 All ER 232 (refd)

English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 (refd)

Filipovic v Upshall [1998] OJ No 4498 (refd)

Floyd v John Fairhurst & Co [2004] All ER (D) 312 (May) (refd)

Fortune Link Engineering Co Ltd v Sui Chong Construction & Engineering Co Ltd [2016] HKCU 1611 (refd)

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Grace Electrical Engineering Pte Ltd v Te Deum Engineering Pte Ltd [2018] 1 SLR 76 (refd)

Hobson v Sir W C Leng & Co [1914] 3 KB 1245 (refd)

Jinro (HK) International Ltd, Re [2004] 2 HKLRD 221 (refd)

Johnsey Estates (1990) Ltd v Secretary of State for the Environment, Transport and the Regions [2001] All ER (D) 135 (Apr) (refd)

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Khng Thian Huat v Riduan bin Yusof [2005] 1 SLR(R) 130; [2005] 1 SLR 130 (refd)

King v On-Stream Natural Gas Management Inc (1993) 21 CPC (3d) 16 (refd)

Liu Shu Ming v Koh Chew Chee [2023] 1 SLR 1477 (refd)

McGlinn v Waltham Contractors Ltd (No 5) [2008] Bus LR 278; [2007] EWHC 698 (TCC) (refd)

Meady v Greyhound Canada Transportation Corp [2013] OJ No 4634 (refd)

Mike Gaffikin Marine Pty Ltd v Princes Street Marina Pty Ltd BC9603588 (July 1996) (refd)

Monsanto Technology LLC v Cargill International SA (No 2) [2008] FSR 16 (refd)

National Westminster Bank plc v Kotonou [2007] EWCA Civ 223 (refd)

Ng Eng Ghee v Mamata Kapildev Dave [2009] 4 SLR(R) 155; [2009] 4 SLR 155 (refd)

Redstone Mortgages v B Legal [2015] 2 Costs LR 425 (refd)

Rowe v Ingenious Media Holdings plc [2020] EWHC 235 (Ch) (refd)

Rushcutters Bay Smash Repairs Pty Ltd v H McKenna Netmakers Pty Ltd [2003] NSWSC 670 (refd)

Smithkline Beecham plc v Apotex Europe Ltd [2004] All ER (D) 246 (Dec) (refd)

Stumm v Dixon & Co (1889) 22 QBD 529 (refd)

Summit Property Ltd v Pitmans (A Firm) [2001] All ER (D) 270 (Nov) (refd)

Travellers' Casualty and Surety Company of Canada v Sun Life Assurance Company of Canada (UK) Ltd [2006] EWHC 2885 (Comm) (refd)

Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 (refd)

Wing Joo Loong Ginseng Hong (Singapore) Co Pte Ltd v Qinghai Xinyuan Foreign Trade Co Ltd [2009] 2 SLR(R) 814; [2009] 2 SLR 814 (refd)

Writers Studio Pte Ltd v Chin Kwok Yung [2023] 4 SLR 814 (refd)

Facts

This was an appeal against the decision of the Singapore International Commercial Court (the “SICC”) in BCBC Singapore Pte Ltd and another v PT Bayan Resources TBK and another[2022] SGHC(I) 17, on the costs of SIC/S 1/2015 (“S 1”). The SICC had awarded a total of $4,694,633.20 in costs and disbursements to the defendants. This appeal was only concerned with a part of this, specifically the amount of $2,671,787 awarded in costs subsequent to the transfer of S 1 to the SICC.

S 1 had been heard over three tranches. The appellants, BCBC Singapore Pte Ltd (“BCBCS”) and Binderless Coal Briquetting Company Pty Limited (“BCBC”), had succeeded on most of the issues concerning liability in S 1, which formed the focus of the first and second tranches. However, the respondents, PT Bayan Resources TBK (“BR”) and Bayan International Pte Ltd (“BI”), ultimately succeeded on issues relating to damages and quantum in the third tranche that were determinative of the plaintiffs' claim. As the court held in the appeal from the third tranche, this was chiefly because...