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 |
Judgment in this action was given on 28 May 2020 in
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
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:
…
Paragraph 1 of the Fifth Schedule provides:
…
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
The underlying facts in
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:
Paragraph 9 of
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
To continue reading
Request your trial-
The "Luna" and another appeal
...Qilin was cited by the Singapore International Commercial Court in Beyonics Asia Pacific Ltd and others v Goh Chan Peng and another [2020] 5 SLR 235 (“Beyonics”). In Beyonics, Simon Thorley IJ delivered his costs decision after the appellants had filed a notice of appeal against his substan......
-
Ser Kim Koi v GTMS Construction Pte Ltd
...Duggal (TSMP Law Corporation) for the second and third respondents. Case(s) referred to Beyonics Asia Pacific Ltd v Goh Chan Peng [2020] 5 SLR 235 (refd) Clearlab SG Pte Ltd v Ma Zhi [2016] 3 SLR 1264 (refd) GTMS Construction Pte Ltd v Ser Kim Koi [2021] SGHC 9 (refd) GTMS Construction Pte ......
-
Case Note
...2021 CA were Beyonics Asia Pacific Ltd v Goh Chan Peng [2020] 4 SLR 215 (“2020 SICC”) and Beyonics Asia Pacific Ltd v Goh Chan Peng [2020] 5 SLR 235 (“SICC Cost Order”). For the purpose of this case note, SICC Cost Order is outside the remit of this discussion. 3 Before the 2021 CA and the ......