Elbow Holdings Pte Ltd v Marina Bay Sands Pte Ltd

CourtHigh Court (Singapore)
JudgeChoo Han Teck J
Judgment Date29 October 2014
Neutral Citation[2014] SGHC 219
Citation[2014] SGHC 219
Published date11 November 2014
Docket NumberSuit No 954 of 2012 (Registrar’s Appeal No 239 of 2014)
Hearing Date24 July 2014,07 October 2014,27 October 2014
Plaintiff CounselTan Weiyi, Lucas Lim and Chia Joanne (Wong & Leow LLC)
Defendant CounselAlma Yong and Sim Mei Ling (WongPartnership LLP)
Subject MatterCivil Procedure,Security for costs
Choo Han Teck J:

This is an appeal by the plaintiff, Elbow Holdings Pte Ltd (“Elbow”) against the decision of the Supreme Court Registrar (“Registrar”) in Summons No 2330 of 2014 (“Summons 2330 of 2014”) on 26 July 2014 to award security for costs amounting to $75,000 in favour of the defendant, Marina Bay Sands Pte Ltd (“MBS”). The Registrar ordered that the security be furnished within 14 days of that order, namely, by 10 July 2014 and further ordered a stay of proceedings in the interim pending the payment of security. To date, the plaintiff has not provided the security, nor has it paid costs (which were fixed at $5,000 including disbursements) arising out of the security for costs application.

Elbow is a Singapore incorporated company that owns and operates an Australian themed bar and bistro known as South Coast Bar & Bistro (“South Coast”) located at Marina Bay Sands Shoppes in Singapore’s Marina Bay Sands Integrated Resort. South Coast is Elbow’s only business. MBS is the landlord of and manages Marina Bay Sands Shoppes. On 8 March 2010, Elbow and MBS Pte Ltd entered into a lease agreement for units #01-R7 and #B1-R7 of Marina Bay Sands Shoppes. South Coast opened for business on 3 December 2010. Unit #01-R7 is the kiosk of South Coast, whereas #B1-R7 is the basement kitchen.

On 7 November 2012, Elbow commenced Suit No 954 of 2012 (“Suit 954 of 2012”) for damages for misrepresentation and breach of a collateral contract. Elbow says that in the course of negotiations for the lease agreement from March 2009 to early March 2010, MBS had made the following oral and/or written representations to Elbow: First, Elbow would be able to use the outdoor space in the front of the kiosk for South Coast ; and Second, Elbow would be able to use the outdoor area along the promenade of the integrated resort. Elbow says that the outdoor area can accommodate hundreds of customers. MBS denies these and counterclaims for arrears for the period 19 March 2012 to 1 January 2013 arising from Elbow’s use and occupation of units #01-R7 and #B1-R7 and the outdoor space in front of the kiosk. It is MBS’s defence that around June 2012, some two years after the lease agreement was signed, the parties restructured the lease agreement.

Since Elbow’s commencement of Suit 954 of 2012, MBS has commenced two further actions against Elbow. Both actions are in relation to the leased units. The first is Suit No 702 of 2013 (“Suit 702 of 2013”) commenced on 5 August 2013 for further arrears allegedly due and owing for the period from 1 March 2013 to 1 August 2013. The second, Suit 553 of 2014 (“Suit 553 of 2014”) is a claim for arrears allegedly due and owing from September 2013 and May 2013 under the alleged restructured lease agreement and alternatively, the original lease agreement. In Suit 553 of 2014, MBS also seeks repossession of the units. The plaintiff obtained an order in Summons No 2654 of 2014 (“Summon 2654 of 2014”) on 31 July 2014 consolidating Suits 702 of 2013, 553 of 2014 and 954 of 2012. These suits will proceed as one action.

On 21 April 2014, MBS’s lawyers wrote to Elbow’s lawyers requesting security for costs in the sum of $150,000 by way of a banker’s guarantee. On 28 April 2014, Elbow’s lawyers replied, saying that their client will not agree to provide security. MBS then took out Summons 2330 of 2014 for security for cost amounting to $150,000. As mentioned in [1] above, the registrar ordered security against Elbow who now appeals against that order.

Section 388(1) of the Companies Act (Cap 50, 2006 Rev Ed) (“CA”) reads:

Security for costs 388.–(1) Where a corporation is plaintiff in any action or other legal proceeding the court having jurisdiction may, if it appears by credible testimony that there is reason to believe...

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3 cases
  • Sun Electric Pte Ltd v Sunseap Group Pte Ltd and others and another suit
    • Singapore
    • High Court (Singapore)
    • 22 January 2020
    ...in relation to the plaintiff’s financial situation are also relevant (see, eg, Elbow Holdings Pte Ltd v Marina Bay Sands Pte Ltd [2014] SGHC 219, where the court took into consideration the plaintiff’s managing director’s concession that the plaintiff was in a dire financial situation). The......
  • StreetSine Singapore Pte Ltd v Singapore Institute of Surveyors and Valuers and others
    • Singapore
    • High Court (Singapore)
    • 28 December 2018
    ...current and long term) (see Frantonios at [33]); the solvency of the plaintiff (see Elbow Holdings Pte Ltd v Marina Bay Sands Pte Ltd [2014] SGHC 219 (“Elbow Holdings”) at [9(a)]); and whether there is any evidence that the plaintiff has failed to pay or delayed in making payment of a debt ......
  • Elbow Holdings Pte Ltd v Marina Bay Sands Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 11 August 2015
    ...decision to award security for costs in favour of the defendant in October 2014: see Elbow Holdings Pte Ltd v Marina Bay Sands Pte Ltd [2014] SGHC 219, where a brief summary of this action can be found. Presently, four interlocutory matters are before the court. All four matters arose from ......

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