BXS v BXT

• Judge: Anselmo Reyes IJ
• Judgment Date: 11 September 2019
• Neutral Citation: [2019] SGHC(I) 14
• Citation: [2019] SGHC(I) 14
• Court: International Commercial Court (Singapore)
• Published date: 17 September 2019
• Docket Number: Originating Summons No 1 of 2019 (Summons No 1035 of 2019)
• Plaintiff Counsel: Koh Choon Guan Daniel, Er Hwee Lee Danna Dolly (Yu Huili), Ng Wei Ying (Eldan Law LLP)
• Defendant Counsel: Tan Beng Hwee Paul, Pang Yi Ching, Alessa and David Isidore Tan Huang Loong (Rajah & Tann Singapore LLP)
• Subject Matter: Civil Procedure,Costs
• Hearing Date: 15 August 2019

Anselmo Reyes IJ: Introduction

I refer to my judgment in BXS v BXT [2019] SGHC(I) 10 dated 20 June 2019 and adopt the abbreviations in that judgment. I now deal with the costs of the matters that I have determined. That means considering three questions: Who should bear the costs of SIC/OS 1/2019 (“OS 1”), HC/SUM 1035/2019 (“SUM 1035”), and HC/SUM 5770/2018 (“SUM 5770”)? What should the amount of those costs be? What interest should run on such costs?

OS 1 was the Plaintiff’s application to set aside the Final Award. SUM 1035 was the Defendant’s application to strike out OS 1. SUM 5770 was the Defendant’s application, pending the provision by the Plaintiff of security for costs ordered by the Singapore court and pending the hearing of SUM 1035, for an extension of time to file an affidavit in response in OS 1. Following my suggestion at a case management conference, OS 1 and SUM 1035 were heard together.

By letter to the court dated 4 July 2019 the parties agreed to file sequential submissions on the costs of the three applications mentioned. The Defendant was to file its submissions within 21 days after the court’s directions and the Plaintiff was to do so within 14 days thereafter. By letters dated 22 August 2019, the parties indicated that they were content for me to decide on costs based on their written submissions alone.

Discussion Who should bear the costs of the three applications?

The Defendant having prevailed in OS 1 and SUM 1035, it is clear (and the Plaintiff has not really disputed) that the Plaintiff should bear the Defendant’s costs of those two applications.

Given the Assistant Registrar’s directions on 30 January 2019 that the costs of SUM 5770 be in the cause, the Plaintiff should also bear the Defendant’s costs of that application.

What should the quantum of costs be?

The parties are far apart on this question. The Defendant asks for S$70,000 all-in as its reasonable costs of the three applications. The Plaintiff says that this amount is excessive and suggests that S$15,800 would be more appropriate.

The parties have both referred me to CPIT Investments Limited v Qilin World Capital Limited and another [2018] SGHC(I) 2 (“CPIT”). The Defendant has drawn my attention to Vivian Ramsay IJ’s dictum to the effect that, in SICC cases, “the unsuccessful party must pay the reasonable costs of the proceedings to the successful party, unless the court orders otherwise (O 110 r 46(1) of the ROC)” (CPIT at [14]). Ramsay IJ went on to say that “the court may, in particular ... take into account such circumstances as the court considers relevant, including the conduct of the case (O 110 r 46(3))”. The Plaintiff, on the other hand, has highlighted the passage where Ramsay IJ stated (CPIT at [27]):

... under the SICC costs regime in O 110 r 46 of the ROC, costs before the date of transfer, 28 June 2016, should, in this case, be assessed taking account of the fact that the High Court regime under O 59 would have applied before that date and, consequently, the appropriate weight ought to be given to Appendix G in assessing the reasonable costs under the SICC costs regime in O 110 r 46. As for post-transfer costs, in assessing reasonable costs, I consider that Appendix G is one of a number of factors which may be taken into consideration.

“Appendix G” refers to Appendix G to the Supreme Court Practice Directions, and is entitled “Guidelines for Party-and-Party Costs Awards in the Supreme Court of Singapore”.

The Defendant submits that S$70,000 is reasonable for the following reasons: The Plaintiff behaved in a “highly culpable” manner by raising unmeritorious arguments in OS 1 and SUM 1035, constantly attempting to “derail timelines and/or frustrate the Singapore proceedings,” and generally conducting itself in a manner that “generated unnecessary costs”. The amount of S$70,000 is proportionate to the sum at stake, since the Final Award required the Plaintiff to pay the Defendant THB 91,153,182.62 (approximately S$4,010,740.04), together with costs of US$647,112.51 and interest. A significant amount of work had to be done by the Defendant, including the filing of 3,278 pages of documents, the submission of 105 authorities, and seven court attendances (that is, pre-trial conferences, a case management conference, and the substantive hearing of OS 1 and SUM 1035).

The foregoing factors are said to have led the Defendant to incur legal fees and disbursements in OS 1 amounting to S$116,733.84 in total. The legal fees comprise S$94,295.65 in fees for Rajah & Tann (“R&T”), and S$15,510.72 in fees for Allen & Overy (Asia) Pte Ltd (“A&O”). The disbursements consist of S$5,785.20 in e-litigation fees, and S$1,142.27 in miscellaneous expenses.

The Defendant acknowledges that, if Appendix G were applicable, it would be entitled to between S$19,000 and S$34,000 for the three applications and S$6,927.47 for disbursements in connection with OS 1. The lower bound of $$19,000 is calculated by adding the figures of S$1,000 for SUM 5770, S$6,000 for SUM 1035, and S$12,000 for OS 1. The upper bound of S$34,000 is calculated by adding the figures of S$2,000 for SUM 5770, S$20,000 for SUM 1035, and S$12,000 for OS 1. The Defendant says that, although the substantive hearing of OS 1 and SUM 1035 together only lasted for half a day, the two applications had been set down for a whole day.

The Defendant nonetheless submits that I should depart from the Costs Guidelines in Appendix G for the following reasons: OS 1 was transferred to the SICC on 8 March 2019. Accordingly, only the costs of SUM 5770 (which would be relatively minimal) should be subject to Appendix G. It is true that a party is only allowed to claim for the costs of two solicitors under Appendix G and the Defendant is claiming for three solicitors. But the Plaintiff...