Mok Kwong Yue v Ding Leng Kong

JurisdictionSingapore
Judgment Date16 November 2011
Date16 November 2011
Docket NumberBill of Costs No 229 of 2010
CourtHigh Court (Singapore)
Mok Kwong Yue
Plaintiff
and
Ding Leng Kong
Defendant

Judith Prakash J

Bill of Costs No 229 of 2010

High Court

Civil Procedure—Costs—Principles of taxation—Applicability of Medway principles in Singapore—Counterclaim arising from identical subject matter in defence to main claim—Whether costs should be apportioned between plaintiff and defendant

In 2004, Mok Kwong Yue (‘the plaintiff’) sued Ding Leng Kong (‘the defendant’) to recover monies allegedly paid under mistake of law. The defendant resisted the claim and mounted a counterclaim. The judge dismissed both the claim and the counterclaim with costs (see [2008] SGHC 65).

In November 2010, the plaintiff presented his bill of costs for the work done in respect of the counterclaim for taxation. The defendant only filed the defendant's bill of costs for the work done in resisting the claim on 28 September 2011. The plaintiff claimed, inter alia, $80,000 in respect of getting up for the counterclaim. The assistant registrar (‘the AR’) awarded the plaintiff $7,000, applying the principle in Medway Oil and Storage Company, Limited v Continental Contractors, Limited [1929] 1 AC 88 (‘Medway’) that where the counterclaim arose from the defence to the main claim, no apportionment would be ordered but rather extra costs arising from the counterclaim could be allowed. The defendant appealed and argued that the principles in Christie v Platt [1921] 2 KB 17 (‘Christie v Platt’) were applicable: namely that costs should be apportioned between the plaintiff and defendant where each had been successful (ie,on the claim and counterclaim respectively) in accordance with a consideration of how much of each item of costs had been incurred in relation to either the claim or counterclaim.

Held, dismissing the appeal:

(1) The Medway principles provided that in a situation where both a claim and the counterclaim failed and were dismissed with costs and where there was a separate and substantial question raised by the counterclaim, there had to be substantial costs paid by the defendant to the plaintiff in relation to the counterclaim, and an apportionment of the costs. But where the subject matter of the counterclaim was identical to the defence or part of the defence, no apportionment should be ordered, but rather the plaintiff should be allowed only the extra costs incurred by reason of the counterclaim. A review of the case law showed that the Medway principles were firmly embedded in English law: at [7] to [12] , [19] , [26] and [27] .

(2) The Medway principles had been applied in Singapore and no local case had given reasons why these principles should be disregarded in favour of the Christie v Platt approach. In any event, the Medway principles should be adopted because they were principles which were intelligible and easily applied: at [22] and [28] .

(3) Although the Medway principles might work out apparently harshly in exceptional cases, when these threatened to occur the remedy was to apply at the trial for special directions as to issues and details of costs, and any potential hardship might be ameliorated by such directions: at [22] and [28] .

(4) In this case, the counterclaim itself arose out of one of the defences. The Medway principles were applicable and the plaintiff was not entitled to claim full getting up for the counterclaim. Only the additional time and expenditure incurred because the counterclaim was presented could be recovered. In this case, this was relatively marginal: at [31] to [34] .

AEBeavis v Foo Chee Fong [1938] MLJ 129 (folld)

Atlas Metal Co v Miller [1898] 2 QB 500 (refd)

Baines v Bromley (1881) 6 QBD 691 (refd)

Brown, Re; Ward v Morse (1883) 23 Ch D 377 (refd)

Christie v Platt [1921] 2 KB 17 (not folld)

Ding Leng Kong v Mok Kwong Yue [2003] 4 SLR (R) 637; [2003] 4 SLR 637 (refd)

James Crean & Son Ltd v J Steen M'Millan [1922] 2 IR 105 (refd)

Medway Oil and Storage Co Ltd v Continental Contractors Ltd [1929] AC 88 (folld)

Millican v Tucker [1980] 1 WLR 640 (refd)

Saner v Bilton (1879) 11 Ch D 416 (refd)

Wilson v Walters [1926] 1 KB 511 (refd)

Andrew Ee (Andrew Ee & Co) for the applicant

Muthu Kumaran (Kumaran Law) for the respondent.

Judgment reserved.

Judith Prakash J

1 The question that concerns me in this review of taxation of a bill of costs is whether the principles established in Medway Oil and Storage Company, Limited v Continental Contractors, Limited [1929] AC 88 (‘Medway Oil’) as to how costs should be taxed in the situation where each of the opposing parties to a suit obtains a costs order in his favour, should be followed in Singapore.

2 The principles in question (‘the Medway principles’) are summed up in the headnote of the case which reads:

Where a claim and counterclaim are both dismissed with costs, upon the taxation of the costs, the true rule is that the claim should be treated as if it stood alone and the counterclaim should bear only the amount by which the costs of the proceedings have been increased by it. No costs not incurred by reason of the counterclaim can be costs of the counterclaim. In the absence of special directions by the Court there should be no apportionment. The same principle applies where both the claim and the counterclaim have succeeded.

Background

3 In 2004, Mok Kwong Yue (‘the plaintiff’) sued Ding Leng Kong (‘the defendant’) to recover sums of money which he alleged he had paid the defendant by reason of a mistake of law. The defendant resisted the claim on several grounds and also mounted a counterclaim. I heard the action and dismissed both the claim and the counterclaim with costs (see [2008] SGHC 65).

4 Judgment was delivered in May 2008. In November 2010, the plaintiff presented his bill of costs for the work done in respect of the counterclaim for taxation. Up to that time, the defendant had not presented his own bill of costs for the work done in resisting the claim. In fact, despite repeated assurances that the bill would be filed soon, counsel for the defendant, Mr Muthu Kumaran, did not file the defendant's bill for taxation until 28 September 2011. Thus, the plaintiff's bill had to be taxed in the absence of the defendant's bill.

5 As drawn, the plaintiff claimed the following amounts under the bill:

(a) in respect of Section 1, $80,000;

(b) in respect of Section 2, $1,260; and

(c) in respect of Section 3, $9,617.80.

Taxation took place over two sessions and at the end of the second session, the Assistant Registrar (‘the AR’) awarded the plaintiff $7,000 in respect of Section 1, $400 in respect of Section 2 and taxed off all items in Section 3 except items 62 and 63. The AR disallowed the taxing and the allocatur fee in view of the amount that had been taxed off. The basis of the AR's decision that the plaintiff was only entitled to $7,000 in respect of getting up for the counterclaim was that she accepted that the Medway principles applied to this case.

6 The plaintiff applied for a review of the AR's decision. At the review, Mr Andrew Ee, counsel for the plaintiff, put forward a vigorous argument that it was wrong to apply the Medway principles. Instead, he submitted, the correct approach to take was that espoused in Christie v Platt [1921] 2 KB 17 (‘Christie v Platt’). Although Medway Oil has been followed in Singapore previously (the first example being AEBeavis v Foo Chee Fong [1938] MLJ 129 (‘Beavis’)) and the Medway principles have been put forward in legal writing as the applicable principles of taxation in a case such as the present (see Lee Teck Leng, ‘Taxation of Party and Party Costs in Civil Proceedings’ (1993) 5 SAc LJ 309), in view of the arguments made, it may be useful to review the law on the matter.

Tracing the law

7 The first case in the series of authorities that was cited to me was Saner v Bilton(1879) 11 Ch D 416, the decision of a very well respected judge, Fry J. That case had a result that was similar to the one here in that the plaintiff's claim was dismissed with costs to the defendant and the defendant's counterclaim was dismissed with costs to the plaintiff. Fry J's decision laid down the basis for the Medway principles and it was subsequently explained in Medway Oil( [1] supra) by Viscount Haldane as follows:

In 1879 Fry J. decided Saner v Bilton. ... The question was whether the defendant ought to pay only so much of the costs pertaining to the claim as were occasioned by the counterclaim, or whether the costs of all the proceedings which related to both claim and counterclaim should be apportioned. Fry J. consulted some of the most eminent of the Taxing Masters, who advised against apportionment. He afterwards gave a considered judgment, in which he said that analysis of the practice before the Judicature Act threw but little light on the question before him. The true view seemed to him to be that the plaintiff having begun the litigation, and the...

To continue reading

Request your trial
4 cases
  • Leiman, Ricardo and another v Noble Resources Ltd and another
    • Singapore
    • High Court (Singapore)
    • 26 July 2018
    ...substantial costs paid by the defendant in relation to the counterclaim or an apportionment of the costs: Mok Kwong Yue v Ding Leng Kong [2012] 1 SLR 737, citing Medway Oil and Storage Co Ltd v Continental Contractors Ltd and others [1929] 1 AC 88. Whilst the defendants have substantially s......
  • Randall Savio Anthony D'Souza v Pius Chai
    • Singapore
    • District Court (Singapore)
    • 10 October 2016
    ...cases cited above, were affirmed by Judith Prakash J (as she then was) in the High Court decision of Mok Kwong Yue v Ding Leng Kong [2012] 1 SLR 737. The trial before me took four-and-a-half days. On the facts of the case, the allegations and evidence raised by the Defendant in his counterc......
  • Benzline Auto Pte Ltd v Supercars Lorinser Pte Ltd and another
    • Singapore
    • Court of Appeal (Singapore)
    • 8 January 2018
    ...The applicable principles as to costs in such an outcome are accurately summarised in the headnote to Mok Kwong Yue v Ding Leng Kong [2012] 1 SLR 737 as follows: (1) … in a situation where both a claim and the counterclaim failed and were dismissed with costs and where there was a separate ......
  • Markpoint Engineering Pte Ltd v Decon Construction & Engineering Pte Ltd
    • Singapore
    • District Court (Singapore)
    • 24 June 2020
    ...The applicable principles as to costs in such an outcome are accurately summarised in the headnote to Mok Kwong Yue v Ding Leng Kong [2012] 1 SLR 737 as follows: (1) … in a situation where both a claim and the counterclaim failed and were dismissed with costs and where there was a separate ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT