Byl v Byn

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeAnselmo Reyes IJ
Judgment Date11 May 2020
Docket NumberOriginating Summons No 9 of 2019
Date11 May 2020

[2020] SGHC(I) 12

Singapore International Commercial Court

Anselmo Reyes IJ

Originating Summons No 9 of 2019

BYL and another
and
BYN

Davinder Singh SC, David FongandSivanathan Jheevanesh(instructed), Kabir Singh and Tan Tian Yi (Cavenagh Law LLP) for the plaintiffs;

Thio Shen Yi SC, Niklas WongandKevin Elbert (TSMP Law Corporation) for the defendant.

Case(s) referred to

BXS v BXT [2019] 5 SLR 48 (refd)

CPIT Investments Ltd v Qilin World Capital Ltd [2018] 4 SLR 38 (folld)

DyStar Global Holdings (Singapore) Pte Ltd v Kiri Industries Ltd [2020] 4 SLR 28 (refd)

Legislation referred to

Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 59, O 110 r 46

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 18D(2)

Civil Procedure — Costs — Principles — Circumstances of case having warranted spending more than the $15,000 specified by Appendix G Supreme Court Practice Directions — Parties having spent more than the $15,000 specified by Appendix G Supreme Court Practice Directions — Whether Appendix G Supreme Court Practice Directions to be relied upon — Appendix G Supreme Court Practice Directions

Civil Procedure — Costs — Principles — Claim having been commenced in High Court and transferred to Singapore International Commercial Court — Whether pre- and post-transfer costs to be assessed by O 110 r 46 Rules of Court (Cap 322, R 5, 2014 Rev Ed) — Order 110 r 46 Rules of Court (Cap 322, R 5, 2014 Rev Ed)

Facts

The plaintiffs applied to set aside an award in favour of the defendant pursuant to an arbitration before the International Chamber of Commerce. The application was heard before the Singapore International Commercial Court (“SICC”), and the SICC decided in favour of the defendant.

The plaintiffs accepted that they should pay the defendant's costs. However, there was a divergence on the quantum of costs payable. The plaintiffs argued that regard should be had to the Costs Guidelines in Appendix G of the Supreme Court Practice Directions (“Appendix G”), which specified costs of S$15,000 for a one-day originating summons hearing. The defendant, on the other hand, argued that Appendix G should be ignored in the circumstances of this case.

Held, awarding the defendant costs of $82,500 plus interest:

(1) When an application to set aside an arbitral award was transferred to the SICC, pre- and post-transfer costs ought in principle to be assessed in accordance with O 110 r 46 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed), which provided that an unsuccessful party had to pay the “reasonable costs” of the successful party unless otherwise ordered: at [3].

(2) When transferring the case to the SICC, the deputy registrar left open the question of whether costs should be assessed by reference to Appendix G or O 110 r 46. Even when assessing costs under O 110 r 46, the SICC could still refer to Appendix G. But it was doubtful that Appendix G was of real assistance where the recoverable costs specified there constituted a significant discount to both party's actual costs: at [4] and [16].

(3) In this case, Appendix G should not be relied upon, as both parties reasonably recognised that the circumstances warranted spending more than the S$15,000 specified by Appendix G and both parties actually spent substantially more than SS15,000 even before the case management conference for OS 9/2019 took place: at [18].

(4) Applying the “reasonable costs” standard, the defendant's reasonable costs for the entirety of the plaintiffs' setting-aside application came up to S$82,500. While the amount at stake was substantial (S$144m), this did not give a party carte blanche to spend however much it wished to obtain a favourable legal outcome. Further, while the plaintiffs' estimated expenditure (of between S$800,000 and S$900,000) exceeded the defendant's claimed costs (of S$235,000), this did not ipso facto mean that the defendant's estimate was reasonable, since the parties' positions might not have been symmetrical and there was the possibility that both sides had been extravagant in the types of activities that they had undertaken in the proceedings and the amounts spent in carrying out those activities. The reasonableness of the individual items claimed by a party would often still have had to be established: at [19] and [20].

(5) A difficulty arose from the minimal particulars provided by the defendant in support of its claim for costs. Parties preparing cost submissions in SICC cases should bear in mind the need to provide sufficiently detailed particulars for cost items being claimed: at [13].

11 May 2020

Judgment reserved.

Anselmo Reyes IJ:

Introduction

1 On 3 March 2020, by my judgment in BYL and another v BYN[2020] SGHC(I) 6, I dismissed the plaintiffs' (“Plaintiffs”) application to set aside an International Chamber of Commerce (“ICC”) Partial Award dated 30 April 2019 (“ICC Award”) pursuant to an arbitration before the ICC (“ICC abitration”). This is my judgment on the costs of the Plaintiffs' abortive setting-aside application. The parties agreed the following directions for the assessment of costs:

(a) Parties to submit their respective written submissions on costs, limited to 20 pages, within 14 days of the relevant court order.

(b) Parties to submit their reply submissions on costs, if any, limited to ten pages, within 14 days thereafter.

(c) The issue of costs to be determined on the basis of the parties' written submissions and without the attendance of solicitors and oral argument.

2 There is no dispute on the incidence of costs. The defendant (“Defendant”) having prevailed, the Plaintiffs accept that they should pay the Defendant's costs. But there is a wide divergence on quantum. The Plaintiffs say that the Defendant's costs should be no more than S$15,000, while the Defendant says that its costs should be S$235,000 (inclusive of disbursements).

3 When the deputy registrar (“Deputy Registrar”) transferred the Plaintiffs' setting-aside application to the...

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  • Lao Holdings NV v Government of the Lao People's Democratic Republic and another matter
    • Singapore
    • International Commercial Court (Singapore)
    • 13 April 2022
    ...Appeal did not provide guidance as to how the post-transfer costs would be assessed. The plaintiffs then point to BYL and another v BYN [2020] 4 SLR 204, in which the application was to set aside a single award. The amount at stake was S$144m, and the successful defendant had sought S$235,0......
  • Kiri Industries Ltd v Senda International Capital Ltd
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    ...28 (folld) Basil Anthony Herman v Premier Security Co-operative Ltd [2012] 2 SLR 616 (refd) BXS v BXT [2019] 5 SLR 48 (refd) BYL v BYN [2020] 4 SLR 204 (refd) CBX v CBZ [2021] SGCA(I) 4 (folld) Centre for Laser and Aesthetic Medicine Pte Ltd v GPK Clinic (Orchard) Pte Ltd [2018] 1 SLR 180 (......
  • Kiri Industries Ltd v Senda International Capital Ltd and another
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    ...r 46(3)(d). Kiri has cited several cases where such an order has been made by the SICC (BXS v BXT [2019] 5 SLR 48; BYL and another v BYN [2020] 4 SLR 204; POSH Semco Pte Ltd v Makamin Petroleum Services Co and another [2021] 3 SLR 203) and we exercise our discretion accordingly. Second, we ......
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    ...incurred by the party. The Buyers, however, compared the Appendix G order with an equivalent court order made in BYL and another v BYN [2020] 4 SLR 204 (“BYL (Costs)”), and submitted that because the order in BYL (Costs) referred to “costs in respect of all proceedings” and the Appendix G o......
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