Cheong Ghim Fah and Another v Murugian s/o Rangasamy (No 2)

• Jurisdiction: Singapore
• Judge: V K Rajah JC
• Judgment Date: 11 June 2004
• Neutral Citation: [2004] SGHC 125
• Docket Number: Suit No 493 of 2002
• Date: 11 June 2004
• Published date: 14 June 2004
• Year: 2004
• Plaintiff Counsel: Roy Yeo (Chia Yeo Partnerhip)
• Citation: [2004] SGHC 125
• Defendant Counsel: Vijay Kumar Rai (V K Rai and Partners)
• Court: High Court (Singapore)
• Subject Matter: Malaysian Reciprocal Enforcement of Judgments Act 1958,Definition,Costs,Judgment from Singapore Subordinate Courts not recognised by foreign jurisdiction,"Sufficient reason",Whether proceedings ought to be taxed on High Court scale,Whether sufficient reason to commence proceedings in Singapore High Court,Proceedings prima facie falling within jurisdiction of Subordinate Courts,Conflict of Laws,Foreign judgments,Words and Phrases,Civil Procedure,Recognition,Section 39 Subordinate Courts Act (Cap 321, 1999 Rev Ed),Taxation,Order 59 r 27(5) Rules of Court (Cap 322, R 5, 2004 Rev Ed)

11 June 2004

V K Rajah JC:

1 In Cheong Gim Fah and another v Murugian s/o Rangasamy [2004] 1 SLR 628, I assigned liability to the extent of 85% to the defendant for causing the death of a jogger in a motor accident. Interlocutory judgment was entered in favour of the plaintiffs with damages to be assessed by the Registrar. On 2 April 2004, an assistant registrar assessed damages due to the deceased’s estate at $216,523.60. This sum falls within the pecuniary limit of $250,000 which represents the jurisdictional scope of the District Court in civil matters.

2 On the issue of costs, the assistant registrar, taking into account O 59 r 27 of the Rules of Court (Cap 322, R 5, 2004 Rev Ed) (“RSC”), ruled that “costs are awarded to the plaintiffs to be taxed on the [District Court] scale on a standard basis”. The assistant registrar concurrently granted the plaintiffs liberty to apply directly to me, pursuant to O 59 r 27(5), for a final decision as to whether costs should be assessed on the High Court scale.

The legislative matrix

3 While the High Court retains the general jurisdiction to entertain all manner of actions and causes, the legislature has directed, with clear lines of demarcation, which matters ought to be heard in the subordinate courts alone. There are strong policy reasons underpinned by expediency dictating that this jurisdictional demarcation be respected in the absence of any grounds satisfying the statutory acid test of “sufficient reason”. The administrative and judicial arteries of work flow in the High Court would be clogged if a cavalier approach were adopted by solicitors in observing this vital jurisdictional demarcation. Moreover, solicitors should in no event incur unnecessary costs if a more economical and equally expeditious process of dispute resolution exists. The subordinate courts have been constituted to provide a forum for the just, expeditious and economical resolution of smaller claims.

4 In light of these considerations there are inherent legislative directives governing the assessment of costs of matters which, though adjudicated in the High Court, fall within the jurisdiction of the subordinate courts. Prima facie the costs awarded in such matters ought to be assessed on the subordinate courts scale. (For ease of reference, I shall refer to such proceedings henceforth as “subordinate court proceedings”).

The legislative directives

5 Section 39 of the Subordinate Courts Act (Cap 321, 1999 Rev Ed) (“SCA”) stipulates:

(1) Where an action founded on contract or tort or any written law to recover a sum of money is commenced in the High Court which could have been commenced in a subordinate court, then, subject to subsections (3) and (4), the plaintiff —

(a) if he recovers a sum not exceeding the District Court limit, shall not be entitled to any more costs of the action than those to which he would have been entitled if the action had been brought in a District Court; and

(b) if he recovers a sum not exceeding the Magistrate’s Court limit, shall not be entitled to any more costs of the action than those to which he would have been entitled if the action had been brought in a Magistrate’s Court.

(2) For the purposes of subsection (1)(a) and (b), a plaintiff shall be treated as recovering the full amount recoverable in respect of his claim without regard to any deduction made in respect of contributory negligence on his part or otherwise in respect of matters not falling to be taken into account in determining whether the action could have been commenced in a subordinate court.

(3) Where a plaintiff is entitled to costs on the subordinate courts scale only, the Registrar of the Supreme Court shall have the same power of allowing any items of costs as a District Judge or Magistrate would have had if the action had been brought in a subordinate court.

(4) In any action, the High Court, if satisfied —

(a) that there was sufficient reason for bringing the action in the High Court; or

(b) that the defendant or one of the defendants objected to the transfer of the action to a subordinate court,

may make an order allowing the costs or any part of the costs thereof on the High Court scale or on the subordinate courts scale as it may direct.

…

(6) This section shall not affect any question as to costs if it appears to the High Court that there was reasonable ground for supposing the amount recoverable in respect of the plaintiff’s claim to be in excess of the amount recoverable in an action commenced in a subordinate court.

[emphasis added]

6 Order 59 r 27(5) of the RSC stipulates:

Notwithstanding paragraphs (1) to (4), if any action is brought in the High Court, which would have been within the jurisdiction of a Subordinate Court, the plaintiff shall not be entitled to any more costs than he would have been entitled to if the proceedings had been brought in a Subordinate Court, unless in any such action a Judge certifies that there was sufficient reason for bringing the action in the High Court. [emphasis added]

The rival contentions

7 Counsel for the plaintiffs accepted that the assistant registrar had no discretion in light of O 59 r 27(5) to make any other order of costs. He however contended that there was sufficient reason for initiating the subject proceedings in the High Court and that a judge could vary the assistant registrar’s order. He asserted first of all that the sum of $216,000 awarded by the assistant registrar loomed close to the jurisdictional limit of the subordinate courts. According to his clients’ genuine estimation, damages should have been assessed in the region between $300,000 to $400,000 and his clients should not, to that extent be penalised if the actual amount fell barely short of such an estimation. Next, there were several allegedly interesting and difficult points of law and fact raised in the subject proceedings which would, in the interests of finality, have rendered High Court proceedings preferable. This, he claimed, would in the final analysis obviate an appeal and lead to an ultimate saving of costs. Finally, he drew my attention to a 1996 decision of the Malaysian High Court, Excelmore Trading Pte Ltd v Excelmore Classics Sdn Bhd (cited in Mallal’s Digest of Malaysian and Singapore Case Law vol 2(3) (4th Ed, 2001 Reissue) at para 5056). The Malaysian High Court held in that decision that a judgment emanating from the subordinate courts in Singapore was not registrable under the Malaysian Reciprocal Enforcement of Judgments Act 1958 (“MREJA”); the MREJA recognised only the judgments of a superior court. Counsel contended that commencing proceedings in the subordinate courts would, in the circumstances, have amounted to negligence on his part. The defendant, a Malaysian, had no assets in Singapore. Furthermore, the defendant’s Malaysian insurer, the substantive defendant in the proceedings, had neither a physical presence nor any assets in Singapore.

8 Counsel for the defendant, on the other hand, argued that the court’s primary, if not sole, consideration was to have regard to the final amount adjudged. Acceding to the plaintiffs’ arguments would, he contended, open the floodgates encouraging the filing of matters in the High Court that should rightly be commenced in the subordinate courts.

Principles

9 The general rule is that an award of costs is made for the purpose of compensating, in some way, the successful party for the legal costs it has incurred. An award of costs does not normally carry with it any punitive element designed to punish the unsuccessful party.

10 The legislative directive in s 39 of the SCA is patently intended to ensure that the statutory division of the caseload between the two courts is religiously observed by litigants and their solicitors. A party that breaches this statutory mandate by incorrectly commencing proceedings...