Ser Kim Koi v GTMS Construction Pte Ltd

• Jurisdiction: Singapore
• Judge: Woo Bih Li JAD,Quentin Loh JAD
• Judgment Date: 26 March 2021
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 7 of 2021

Ser Kim Koi

and

GTMS Construction Pte Ltd and others

[2021] SGHC(A) 2

Woo Bih Li JAD and Quentin Loh JAD

Originating Summons No 7 of 2021

Appellate Division of the High Court

Civil Procedure — Appeals — Leave — Applicant seeking leave to appeal against judge's costs order contained in separate judgment from decision on substantive merits — Whether leave to appeal required to appeal against judge's costs order contained in supplemental judgment when Notice of Appeal was already filed against decision on substantive merits — Section 29A(1)(c) read with para 3(f) Fifth Schedule Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Held, granting the application:

(1) Ser's reason that he filed only the Notice of Appeal for the Main Appeal because there were procedural/logistical difficulties in the filing of a single Notice of Appeal against judgments issued on different dates was not valid. There was no such difficulty. Both judgments were issued in respect of the same trial. The Notice of Appeal would simply state that Ser was appealing against the whole or part of the Main Judgment and against the whole or part of the Costs Judgment: at [10].

(2) Ser's explanation that he decided to file only the Notice of Appeal for the Main Appeal because he believed that para 3(f) of the Fifth Schedule of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the Fifth Schedule SCJA 3(f) provision”) required him to obtain leave to appeal in respect of the Costs Judgment if the appeal against the Costs Judgment were what has been referred to as a standalone appeal, was misplaced. If the Judge had issued his substantive decision and costs decision at the same time in a single judgment, Ser would have been entitled to file a single Notice of Appeal against both the substantive and costs decisions. He would also have been entitled to contest the costs decision even if he were unsuccessful against the substantive decision. That process did not make Ser's contest on costs a standalone appeal. It made no material difference where, as in the present case, the Judge had issued his decisions on separate dates if one Notice of Appeal had been filed. The fact that Ser intended to contest the Costs Judgment even if the substantive appeal were unsuccessful would not make the contest a standalone appeal unless the substantive appeal was all along a disguise to hide the fact that the real appeal was in respect of the Costs Judgment alone. However, no one had suggested that the substantive appeal was merely a disguise: at [8] and [13] to [15].

(3) The Costs Judgment was issued in time so that Ser could have filed a single Notice of Appeal in respect of both judgments, without even seeking an extension of time to do so. Had he done so, the Fifth Schedule SCJA 3(f) provision would not apply because that Notice of Appeal would relate to both the Main Judgment and the Costs Judgment so that it could not be said that the “only issue in the appeal relates to costs”: at [12].

(4) Ser could have and should have proceeded to file a single Notice of Appeal in respect of the Main Judgment and the Costs Judgment. Having failed to do so, Ser should nevertheless still be granted leave to file the costs appeal since he was agreeable to having that heard with the Main Appeal. While consolidation was one way of achieving the aim of having both appeals heard together, another way was for the court to direct that both appeals be fixed for hearing together. This would avoid the incurring of further costs which would have been incurred if Ser were required to file a fresh application to consolidate the appeals: at [18] and [19].

[Observation: There was some suggestion in the decision of the Court of Appeal in Qilin World Capital Ltd v CPIT Investments Ltd[2019] 1 SLR 1 that even if no Notice of Appeal had been filed on costs, that the Court of Appeal would still be entitled and empowered to deal with costs of the proceedings below. Nevertheless, it would be prudent for an appellant to seek leave to file a second Notice of Appeal on costs, where it would be too late to file a single Notice of Appeal: at [24].]

Case(s) referred to

Beyonics Asia Pacific Ltd v Goh Chan Peng[2020] 5 SLR 235 (refd)

Clearlab SG Pte Ltd v Ma Zhi[2016] 3 SLR 1264 (refd)

GTMS Construction Pte Ltd v Ser Kim Koi[2021] SGHC 9 (refd)

GTMS Construction Pte Ltd v Ser Kim Koi[2021] SGHC 33 (refd)

Qilin World Capital Ltd v CPIT Investments Ltd[2019] 1 SLR 1 (refd)

Facts

Ser Kim Koi (“Ser”) was the owner of a plot of land on which three Good Class Bungalows were to be built (“the Project”). Ser engaged GTMS Construction (“GTMS”) as the main contractor for the Project. Ser engaged Chan Sau Yan (formerly trading as Chan Sau Yan Associates) (“Chan”) as the architect for the Project. CSYA Pte Ltd (“CSYA”) was a company incorporated by Chan to carry out his architecture business. In the General Division of the High Court, the parties had made various claims against each other.

On 18 January 2021, after a trial, the judge in the General Division of the High Court (“the Judge”) delivered his substantive decision, dismissing most of Ser's claims and allowing the claims of GTMS for unpaid construction costs and of Chan and CSYA for architect's fees (“the Main...