Chan Pik Sun v Wan Hoe Keet and others

• Jurisdiction: Singapore
• Judge: Woo Bih Li JAD
• Judgment Date: 17 November 2023
• Neutral Citation: [2023] SGHC(A) 36
• Court: High Court Appellate Division (Singapore)
• Docket Number: Originating Application No 46 of 2023
• Hearing Date: 09 October 2023
• Citation: [2023] SGHC(A) 36
• Year: 2023
• Plaintiff Counsel: Lok Vi Ming SC, Lee Sien Liang Joseph, Muk Chen Yeen Jonathan and Clara Lim Ai Ying (LVM Law Chambers LLC)
• Defendant Counsel: Christopher Anand s/o Daniel, Harjean Kaur, Yeo Yi Ling Eileen, Lim Yi Zheng and Saadhvika Jayanth (Advocatus Law LLP)
• Subject Matter: Civil Procedure,Costs,Whether the lower court ordered costs to be fixed or assessed for the purpose of starting the time for filing of an appeal,Appeals,Leave,Whether applicant must have satisfied the usual grounds for obtaining permission to appeal on costs when such appeal may be heard together with the appeal on the merits of the claims
• Published date: 17 November 2023

Woo Bih Li JAD (delivering the judgment of the court):

In AD/OA 46/2023 (“the PTA Application”), Ms Chan Pik Sun (“the Applicant”) seeks permission to appeal against the entire decision of the judge in the General Division of the High Court (“the Judge”) on the costs of HC/S 806/2018 (“Suit 806”) issued on 11 September 2023, except for that part of the decision allowing costs of $59,040.41 pursuant to the parties’ agreement.¹ The Judge awarded the Respondents costs and disbursements totalling $374,365.22 which included the agreed sum of $59,040.41 for which the Applicant does not intend to appeal.² For ease of reference, this decision of the Judge on the quantum of costs will be hereafter referred to as “the Costs Decision”.

The first to fourth respondents in the PTA Application are Mr Wan Hoe Keet (Wen Haojie), Ms Ho Sally, Mr Ho Hao Tian Sebastian, and Strategic Wealth Consultancy Pte Ltd, respectively. For ease of reference, they will be collectively referred to as “the Respondents”.

Background

On 14 April 2023, the Judge issued his decision in which he dismissed all the claims of the Applicant against the Respondents in Suit 806. He also awarded the Respondents “costs to be assessed, if not agreed. Unless the parties agree on costs, they shall put in their costs submissions … within three weeks” (see Chan Pik Sun v Wan Hoe Keet and others [2023] SGHC 96 at [206]–[207]). The decision of the Judge on the merits of the claims and on the Applicant’s liability to the Respondents for costs will be referred to as “the Main Decision”.

Thereafter, the Applicant filed an appeal on 11 May 2023, ie, AD/CA 50/2023 (“AD 50”), against the whole of the Main Decision. This would cover the Judge’s decision on the Applicant’s claims as well as her liability for costs, but not the quantum of costs which had not yet been determined.

The lawyers for the Respondents wrote to the court on 17 May 2023 to say that AD 50 was premature because the time for filing of an appeal had not begun to run as the parties had not agreed and the Judge had not determined the quantum of costs.³ The lawyers for the Applicant wrote to court on 18 May 2023 expressing their disagreement on the basis that the Judge had said that costs were “to be assessed”.⁴ The Applicant took the position that as O 19 r 4(1) of the Rules of Court 2021 (“ROC 2021”) provides that “[u]nless the Court otherwise orders, the time for filing of an appeal … does not start to run until after the lower Court has heard and determined all matters in the trial, including costs” and under O 19 r 4(2), “… a direction by the lower Court that costs are to be assessed is to be regarded as a determination on the issues of costs”. Accordingly, since the Judge had said that the costs were to be assessed, the time for the filing of an appeal had started to run from 14 April 2023.⁵

At a case management conference (“CMC”) on 6 July 2023, an Assistant Registrar informed the parties that the Judge was of the view that the time to file an appeal ran from 14 April 2023.⁶

Parties then proceeded on that basis. In the meantime, they tendered costs submissions, and the quantum of costs was eventually determined by the Judge on 11 September 2023 (ie, the Costs Decision).

Thereafter, the Applicant filed the PTA Application on 25 September 2023 in respect of the Costs Decision. The intended appeal would apply to the entirety of the Costs Decision, except for the sum of $59,040.41 which was not in dispute.

Whether the Judge had fixed costs or directed costs to be assessed

As mentioned above (at [3]), the Main Decision of 14 April 2023 stated that the costs awarded to the Respondents were “to be assessed, if not agreed”. However, the Judge also directed parties to tender their costs submissions unless the parties agree on costs, which indicated that costs were to be fixed instead after the Judge had considered the costs submissions. The two sentences resulted in a disagreement between the parties as to whether the Judge had intended to fix costs at a later date or whether he had directed for costs to be assessed. That in turn raises the issue of when the time for filing of an appeal started to run and whether the filing of AD 50 was premature. Thus, we are of the view that this is an opportune time to clarify when costs should be regarded as being fixed or assessed, so that guidance may be provided to future litigants seeking to pursue an appeal.

In our view, the present case has some similarity to AD/SUM 15/2023 (“SUM 15”), which was filed in AD/CA 36/2023 (Chia Soo Kiang (suing as the personal representative and successor of Tan Yaw Lan, deceased) v Tan Tock Seng Hospital Pte Ltd and others (“TTSHPL”)) and which concerned an appeal to the Appellate Division of the High Court (“the Appellate Division”) against the decision of the General Division of the High Court (“the General Division”). In the General Division, the judge stated: “the plaintiff ha[d] failed to prove his case and the action must be dismissed with costs. I will hear the question of costs at a later date.” (see Chia Soo Kiang (personal representative of the estate of Tan Yaw Lan, deceased) v Tan Tock Seng Hospital Pte Ltd and others [2022] SGHC 259 at [43]).

The parties in SUM 15 disputed the effect of the judge’s directions. The defendants argued that the time for filing an appeal ran from the date of the court’s decision because the court had determined the issue of costs, while the plaintiff argued that such time would run only after the quantum of costs had been determined by the court. The defendants had focused on the judge's first sentence while the plaintiff had focussed on the second sentence as reproduced above at [10]. The Appellate Division held that the judge did not direct any assessment of costs and had eventually fixed the quantum of costs. Hence, in accordance with O 19 r 4 of the ROC 2021, the time for filing of an appeal ran from the date when the judge fixed the quantum of costs.

In TTSHPL, it was significant that there was an indication that the judge would fix the quantum of costs himself, albeit at a later date. Such an indication meant that the judge did not direct that costs be “assessed” in the technical sense, which referred to the procedure previously known as “taxation” where a bill of costs was submitted. The previous procedure of taxation was set out in the Rules of Court (2014 Rev Ed) (“ROC 2014”), beginning with O 59 r 20 of the rules. That procedure is now termed as an “assessment” and is provided in the rules set out from O 21 r 17 of the ROC 2021. Notwithstanding the change in terminology, both the ROC 2014 and ROC 2021 provide for what are substantially similar procedures and indeed the rules both envisage the submission of a bill of costs as the initial step of the process (see O 59 r 20 of the ROC 2014 and O 21 r 17 of the ROC 2021). It is therefore clear that an assessment does not simply refer to an evaluation of the costs by the court following further submissions; rather, an assessment involves an entirely different process that begins with the submission of a bill of costs, which contrasts with the fixing of costs. Accordingly, notwithstanding that a court might state that costs are to be “assessed”, the entirety of the court’s directions must be read in context to determine if the court is in fact referring to “assessment” in the technical sense or is...