Beyonics Asia Pacific Ltd and others v Goh Chan Peng and another

• Court: International Commercial Court (Singapore)
• Judge: Simon Thorley IJ
• Judgment Date: 30 September 2020
• Neutral Citation: [2020] SGHC(I) 20
• Citation: [2020] SGHC(I) 20
• Published date: 07 October 2020
• Plaintiff Counsel: Chin Li Yuen Marina, Alcina Lynn Chew Aiping, Siew Guo Wei, Darren Ng Zhen Qiang, Germaine Teo and Joseph Lim (Tan Kok Quan Partnership)
• Defendant Counsel: Davinder Singh s/o Amar Singh SC, Lin Xianyang Timothy, Tan Mao Lin, Gerald Paul Seah Yong Sing and Joshua Chia Sheng Rong (Davinder Singh Chambers LLC)
• Date: 30 September 2020
• Hearing Date: 22 January 2020,20 January 2020,29 January 2020,20 March 2020,05 February 2020,16 January 2020,22 July 2020,14 January 2020,28 January 2020,17 January 2020,31 January 2020,03 February 2020,13 January 2020,28 May 2020,15 January 2020,04 February 2020,21 January 2020,30 January 2020
• Docket Number: Suit No 10 of 2018 (Summons No 56 of 2020)
• Subject Matter: Appeals,Leave,Civil Procedure,Costs

Simon Thorley IJ:

Judgment in this action was given on 28 May 2020 in Beyonics Asia Pacific Limited and others v Goh Chan Peng and another [2020] SGHC(I) 14 and terms not defined here shall have the same meaning as in that judgment. Two separate issues arose for consideration, the Henderson v Henderson Issue and the Substantive Issue. The Defendants succeeded on the Henderson v Henderson Issue with the result that the action was struck out for abuse of process. However, neither party had sought to have the Henderson v Henderson Issue tried as a preliminary point and the trial therefore also addressed the Substantive Issue and judgment was given on this as well.

On the Substantive Issue, had the action not been struck out, the Plaintiffs’ claims for the Diversion Loss and the Total Loss would have failed but their claims for the return of the bonus and the payments made under the Resignation Agreements would have succeeded.

On 29 June 2020 the Plaintiffs filed a notice of appeal against the consequential order (“the Substantive Appeal”).

The parties were unable to agree on the appropriate order for costs and by a subsequent judgment, dated 22 July 2020, it was ordered that the Plaintiffs should pay the Defendants’ costs of the Henderson v Henderson Issue and two thirds of their costs of the Substantive Issue (“the Trial Costs Order”).

An issue has arisen between the parties on the question of whether leave to appeal is needed in order to appeal against the Trial Costs Order in the particular circumstances of this case. In this case, the Plaintiffs have stated that, if the Substantive Appeal is dismissed, they will not challenge the existing order for costs of the trial but would wish to do so in the event that the appeal succeeds wholly or in part.

The Plaintiffs submit that in those circumstances leave to appeal is not required and that the Court of Appeal, following its decision in the Substantive Appeal, has the power to make such order as to costs as it sees fit both in relation to the costs of the appeal and of the trial. It has this power without the need for a formal separate notice of appeal in relation to costs and hence without the need for leave to appeal being granted by the trial judge pursuant to s 34(2) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) and the Fifth Schedule thereto.

The Defendants do not agree. They contend that where an order for costs has been made which is a separate order from that on the substantive judgment which has itself been appealed, leave to appeal is required since the costs issue does not arise under the earlier order.

In consequence, in order to protect themselves should the Defendants’ contentions be correct, the Plaintiffs seek leave to appeal against the Trial Costs Order and, since the application was made out of time, an extension of time in which to file the notice of appeal.

Both parties have filed written submissions and have agreed that the matter should be decided without the need for an oral hearing.

Section 34(2) of the SCJA provides: (2) An appeal may be brought to the Court of Appeal in any of the following cases only with the leave of the High Court or the Court of Appeal unless otherwise provided in the Fifth Schedule:

…

(b) any case specified in paragraph 1 of the Fifth Schedule.

Paragraph 1 of the Fifth Schedule provides: 1. Subject to paragraphs 4 and 5, an appeal may be brought to the Court of Appeal only with the leave of the High Court or the Court of Appeal, in any of the following cases:

…

(b) where the only issue in the appeal relates to costs or fees for hearing dates….

The Plaintiffs put their case succinctly in paragraph 2 of their written submissions:

Where a lower Court releases its judgment on costs subsequent to the substantive judgment (i.e. after the deadline for any appeal against the substantive judgment), it can be argued that a standalone notice of appeal (and correspondingly, leave to file such notice) is not required to appeal against costs if an appeal has already been filed against the substantive judgment. Where the appellant does not intend to challenge the costs judgment in the event the appeal against the substantive judgment fails, it should follow that no appeal against the costs judgment is necessary; in the event the substantive judgment appeal is successful, the Court would and should still be able to make consequential cost orders, including set aside the costs judgment.

In support of this reliance is placed on the Court of Appeal decision in Qilin World Capital Ltd v CPIT Investment Ltd and another appeal [2019] 1 SLR 1 (“Qilin”).

The underlying facts in Qilin so far as relevant were on all fours with the facts of this case. On 5 March 2018 the trial judge made his decision on the costs of the trial, well after the substantive decision had been given, as the Court of Appeal’s decision on the substantive appeal was given the next day, 6 March 2018 (Qilin World Capital Ltd v CPIT Investments Ltd and another appeal [2018] 2 SLR 1).

The appeal was allowed in part and the Court of Appeal was then asked to address the question of costs both at trial and on appeal in the light of its judgment.

The respondent’s solicitors are recorded in [7(a)] of the Court of Appeal’s judgment as contending: (a) The direction from the Court of Appeal on 10 April 2018 was for parties to deal with the question of costs of the appeals. It did not include the costs of the proceedings below, which was not the subject of Qilin’s Notice of Appeal in CA 126.

Paragraph 9 of Qilin reads as follows:

As to point (a), the fact that the costs of the first instance proceedings were absent from Qilin’s notice of appeal is not surprising. The notice of appeal was filed on 20 July 2017. The decision of the trial judge on costs was published on 5 March 2018. Despite the fact that the costs of the proceedings below are not mentioned in the notice of appeal, the court is entitled and empowered to deal with the costs of the proceedings below. Even if the notice of appeal is to be regarded as deficient in this respect, it is a deficiency which could readily be cured by amendment. In the circumstances an amendment is not necessary.

[emphasis added]

The emphasised passage is clear and is directly on point. The Court of Appeal has control over its own proceedings and, once it has reached a conclusion different to that of the trial judge, it has the power to do that which is right in the light of its decision so far as costs are concerned wherever those costs have been incurred.

The Court of Appeal’s judgment on costs was however reached without the benefit of full submissions from the respondent in Qilin as, by then, the solicitors formerly instructed by the respondent had ceased to act. The Defendants in this case submit...