Ho Kon Kim v Lim Gek Kim Betsy and another appeal and Others

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 12 October 2001
• Neutral Citation: [2001] SGCA 67
• Docket Number: Civil Appeals Nos 164 and
• Date: 12 October 2001
• Year: 2001
• Published date: 19 September 2003
• Plaintiff Counsel: Michael Khoo SC and Josephine Low (Michael Khoo & Partners)
• Citation: [2001] SGCA 67
• Defendant Counsel: Leslie Chew SC, Lionel Tay and Esther Ling (Khattar Wong & Partners),CR Rajah SC and Chew Kei-Jin (Tan Rajah & Cheah),Tan Kok Quan SC and Chia Boon Teck (Tan Kok Quan Partnership),M Amaladass, Sivakolunthu and Gn Chiang Soon (M Dass & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: Discretion of court,Successful appellant did not appeal against trial judge's order on costs,Usual order of costs against two or more unsuccessful parties,Apportionment,Joint and several liability,Costs,Relevant circumstances,Denying successful appellant costs of appealling and costs below,Civil Procedure

Judgment

GROUNDS OF DECISION

(Consequential Orders and Costs)

1. In our judgment delivered on 26 September 2001, we invited the parties in Civil Appeal No. 164 of 2000 to submit written arguments on what further consequential orders we should make to give effect to what we have decided, and the parties in Civil Appeal No. 167 of 2000 to submit written arguments on the issue of costs here and below. In response, the solicitors for the respective parties submitted their written arguments which we have now considered.

Civil Appeal No 164 of 2000

2. We deal first with the question of the further consequential orders we should make in Civil Appeal No. 164 of 2000.

Transfer of plot 3

3. In their written submissions, the solicitors for Madam Ho ask for an order that RHB, as the mortgagee in possession, apply at their own costs and expense to the relevant authorities for approval for subdivision of the property into three subdivided lots as contemplated in the sale agreement made between Madam Ho and Ms Lim, and upon such approval being granted, at their own costs and expense, to transfer the subdivided lot marked as plot 3 to Madam Ho without any payment and free from encumbrances. We are unable to accede to this request. There is no justification for such an order. While RHB, in taking the mortgage of the property, recognised Madam Hos interest in the property and agreed to be bound by that interest, they did not agree to be bound by what Ms Lim had agreed to perform under the sale agreement. To direct RHB to take such steps would, in effect, require them to perform in part the obligations of Ms Lim under the sale agreement, to which RHB had never agreed either in the mortgage or in the Regulating Agreement. It may be that, at the end of the day, notwithstanding the realization of her interest in the property, Madam Ho would not be able to recoup the loss she has sustained, but she is not without remedy and is at liberty to have recourse against the relevant party or parties for recovery of her loss or any part of it, as she may be advised.

Costs to WLAW

4. The solicitors for Madam Ho also make lengthy submissions on the costs which the court below ordered Madam Ho to pay to WLAW upon dismissal of her claim against them. Although Madam Ho in the notice of appeal joined WLAW as the second respondents in Civil Appeal No. 164 of 2000, she did not in the Case for the Appellant appeal against the order below dismissing her claim against WLAW. Notwithstanding that, her solicitors in their written submissions raise an extraordinary argument that WLAW should now be deprived of the costs below, or in the alternative a Sanderson order or a Bullock order should now be made in her favour. We are unable to entertain such an application at this stage. The insurmountable obstacle in the way is that Madam Ho did not appeal against the order below dismissing her claim against WLAW with costs, and that order stands. It is not in any way affected by the judgment we have delivered.

5. We now come to the costs of WLAW in Civil Appeal No. 164 of 2000. Apparently they were not aware that Madam Ho was not pursuing her appeal against the dismissal of her claim against them until on or about 18 June 2001, when Madam Hos solicitors served on their solicitors the Case for the Appellant. It is now submitted by the solicitors for WLAW that Madam Ho should bear and pay their costs incurred in the appeal up 18 June 2001. We agree with this argument. WLAW are entitled to such costs in the appeal, and we so order.

Claim of RHB

6. The solicitors for RHB in their written submissions also advance an extraordinary argument. They submit that, having regard to what we have decided, RHB now have a claim against WLAW for breach of duty and/or negligence on the part of Ms Leong, and that they propose to initiate an action against WLAW. By reason of this action or proposed action, RHB now seek a stay of the order for costs made against them. This argument is totally unsustainable. If RHB wish to clutch on what we have decided to found their cause of action against Ms Leong, they are of course at liberty to do so; no doubt they would take adequate and proper legal advice before so deciding. But whatever proceedings they wish to take, or are presently taking, is not a ground for a stay of the order made against them, whether in respect of costs or otherwise. We can find no reason for a stay.

7. Next, RHB request that the costs awarded against them and Ms Lim be apportioned in equal proportions so that each of them will bear only 50% of the costs. We are unable to accede to this...