Ganesan Carlose & Partners v Lee Siew Chun

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 27 February 1995
• Neutral Citation: [1995] SGCA 21
• Date: 27 February 1995
• Subject Matter: Costs,Civil Procedure,O 59 rr 2(2) & 3 Rules of the Supreme Court 1990,Principles,Whether it is open to successful party to an action to claim as damages that part of costs not expressly allowed by court,Whether respondent could claim as damages from third defendants legal costs incurred in suing first and second defendants in same action
• Docket Number: Civil Appeal No 40 of 1994
• Published date: 19 September 2003
• Defendant Counsel: Tay Siok Leng (Loh Lin Kok & Partners)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: C Arul and Milvi Choh (C Arul & Partners)

This appeal concerns essentially a matter of costs and it arose in this way. The respondent in this appeal had in Suit No 2961 of 1987 instituted an action against Sourgrapes Packaging Products Trading Pte Ltd (Sourgrapes), Oversea-Chinese Banking Corporation (OCBC) and M/s Ganesan, Carlose & Partners (GCP), to set aside a mortgage executed by the respondent and her husband (then deceased) in favour of OCBC (hereinafter referred to as `the main action`). The mortgage was given to secure a joint and several guarantee of the respondent and her husband to OCBC in consideration of credit facilities offered by OCBC to Sourgrapes, a company in which the respondent`s son was a director.

The property in respect of which the mortgage was effected, was owned by the respondent and her husband. The son forged his father`s signature. At the time the mortgage deed was presented to the respondent for signature her husband had died and she was told by her son that the document was a testimonial as to his character. She thus executed the same. The signatures of the respondent and her husband were witnessed and attested to by a legal assistant in the employment of GCP. Apparently what happened was that the legal assistant allowed the respondent`s son to take the document away for signature by his parents who then returned it with the assurance that the signatures thereon had been duly obtained.

No appearance was entered by Sourgrapes to the main action. By way of third party proceedings, OCBC claimed an indemnity from Sourgrapes, GCP and the legal assistant. OCBC also brought a counterclaim against the respondent in respect of the guarantee she had given. By way of fourth party proceedings, GCP claimed indemnity or damages against the legal assistant.

The High Court in a judgment (reported at [1993] 2 SLR 297 ) dismissed the respondent`s claim to have the mortgage set aside and allowed OCBC`s counterclaim against the respondent. However, the court allowed the respondent`s claim in part against GCP. The court in turn allowed GCP`s claim against the legal assistant. The entire order made by Michael Hwang JC in the High Court was as follows:

(1) The plaintiff`s action against the second defendants (OCBC) be dismissed with costs including the second defendants` third party costs to be paid by the plaintiff to the second defendants;

(2) The plaintiffs do pay the second defendants the following amounts;

(a) the sum of $388.336.87 being the sum of $241,542.62 with interest thereon with monthly rests on the first $2,000 at the rate of 2% pa above the second defendants` prime lending rate and on the balance of $41,542.62 at the rate of 4.75% pa above the second defendants` prime lending rate from 5 October 1987 until judgment; and

(b) the second defendant`s costs of their counterclaim.

(3) The third defendants (GCP) do pay the plaintiff the following amounts:

(a) 50% of damages to be assessed by the Registrar as having been suffered by the plaintiff; and

(b) costs including all costs paid by the plaintiff to the second defendants but excluding all costs relating to the claim of the plaintiff against the third defendants based on conspiracy and fraud.

(4) The fourth party do fully indemnify the third defendants against the plaintiff`s claim for damages, interest and costs set out in para (3) herein;

And it is further ordered that the parties be at liberty to apply.

Pursuant to para 3(a) of the order of court, an assessment of damages was conducted by the assistant registrar. The respondent claimed the following items of damages:

(a) Judgment debt and interest paid to the second defendant $402,880.79

(b) Solicitor and client cost in Suit No 1893 of 1992 (plaintiff`s

liability under cl 6 of the indenture of mortgage 5,450.00

(c) Legal costs and expenses incurred by the plaintiff in the sale of

No 64 Lorong 24A, Geylang, Singapore in order to pay off the

judgment debt 1,4668.75

(d) Legal costs and expenses incurred by the plaintiff in suing

the first defendants 2,593.00

(e) Legal costs and expenses incurred by the plaintiff in suing

the second defendants 100,681.50

GPC, the appellants in this appeal objected to the inclusion of items (d) and (e) in the computation of damages. The objection was overruled by the learned assistant registrar. The appellants` appeal to the High Court was also dismissed. The High Court was of the view that where as a result of a defendant`s wrong, a plaintiff has incurred costs in pursuing third parties, the plaintiff may, subject to the rules of remoteness, recover those costs from the defendant as damages. Furthermore, it held that the costs need not have been incurred in separate proceedings. Accordingly, it held that the costs incurred by the respondent in suing Sourgrapes and OCBC were recoverable as damages against GCP (under para 3(a) of the order of court) even though those costs were not incurred in a separate action but in the same action as that instituted against GCP.

In arriving at that decision the High Court relied upon cases where the plaintiff sought to recover as damages costs he incurred in previous separate proceedings. The court also...