Ng Eng Ghee and Others v Mamata Kapildev Dave and Others (Horizon Partners Pte Ltd, intervener) and Another Appeal
Jurisdiction | Singapore |
Court | Court of Three Judges (Singapore) |
Judge | Chan Sek Keong CJ |
Judgment Date | 07 July 2009 |
Neutral Citation | [2009] SGCA 30 |
Citation | [2009] SGCA 30 |
Docket Number | Civil Appeal Nos 119 and 120 of 2008 (Originating Summonses Nos 10 and 11 of |
Subject Matter | Strata Titles,Appeals to High Court and Court of Appeal,Strata Titles' Board's order for collective sale set aside at appellate level,Civil Procedure,Appellants having separate representation in proceedings below and in Court of Appeal,Whether objecting subsidiary proprietors entitled to share of interest,Intervener participating in proceedings,Land,Order 59 r 18A Rules of Court (Cap 322, R 5, 2006 Rev Ed),Costs,Whether standard or indemnity basis,Dismissal of application for collective sale order based on technical non-compliance,Whether non-appealing parties' costs of proceedings below recoverable,Some parties to proceedings below choosing not to participate in appeal,Whether in-person litigants entitled to costs,Whether appellants entitled to one set of costs each,Substantial interest accumulating on deposit paid under Collective Sale Agreement,Some appellants appearing in person,Whether appellants' counsel entitled to costs of three counsel,Whether intervening party liable for costs,Whether costs should be awarded for proceedings pertaining to technical non-compliance |
Date | 07 July 2009 |
Defendant Counsel | Ang Cheng Hock SC, Corina Song, William Ong and Loong Tse Chuan (Allen & Gledhill LLP),C R Rajah SC, Karthigesu Anand Thiyagarajah, Burton Chen and Lalitha Rajah (Tan Rajah & Cheah) |
Published date | 10 July 2009 |
Plaintiff Counsel | Harry Elias SC, Philip Fong, Justin Chia and Kylie Peh (Harry Elias Partnership),Rudy Darmawan (in person) |
7 July 2009 |
Judgment reserved. |
V K Rajah JA (delivering the judgment of the court):
Introduction
2 This judgment is in relation to the cost orders to be made for Civil Appeal No 119 of 2008 (“CA 119/2008”) and Civil Appeal No 120 of 2008 (“CA 120/2008”) (collectively referred to as “the Appeals”) relating to the collective sale of the development known as “Horizon Towers”. We gave judgment in the Appeals in favour of the appellants on 2 April 2009 (see Ng Eng Ghee v Mamata Kapildev Dave
Factual matrix
Stage of proceedings |
Relevant parties |
Counsel |
The Horizon Board proceedings (ie, the First Tranche and the Second Tranche) |
The majority owners |
M/s Tan Rajah & Cheah (“TRC”) |
The appellants in |
M/s Harry Elias |
|
The appellants in |
M/s Tan Kok Quan |
|
The appeal by way of Originating Summons No 1269 of 2007 (“OS 1269/2007”) to the High Court against the Horizon Board’s decision after the First Tranche to dismiss the application for a collective sale on the ground that the application was technically irregular |
The majority owners |
TRC |
The appellants in |
HEP |
|
The appellants in |
TKQ |
|
The intervener in the |
M/s Allen & Gledhill LLP |
|
The appeals by the objecting subsidiary proprietors by way of Originating Summonses Nos 10 of 2008 and 11 of 2008 to the High Court against the Horizon Board’s decision in October 2007 to allow the application for a collective sale (“the High Court Proceedings”), which led to the appeals |
The respondents in the |
TRC |
The appellants in |
HEP |
|
The appellants in |
All in person |
|
The intervener in the |
A&G |
|
The appeals against the decision in the High Court proceedings to uphold the Horizon Board’s order for a collective sale (ie, the Appeals) |
The respondents in the |
TRC |
The appellants in |
HEP |
|
The appellants in |
In person |
|
The intervener in the |
A&G |
Issues to be considered
The costs indemnity principle
6 Before we discuss the issues set out in [5] above, it is important to recall the general rule in Singapore, viz, that costs should follow the event except in special circumstances (see Singapore Civil Procedure 2007 (GP Selvam gen ed) (Sweet & Maxwell Asia, 2007) (“Singapore Civil Procedure 2007”) at paras 59/3/1 and 59/3/5; see also Tullio v Maoro
7 The fundamental conception of costs which underlies the indemnity principle is that costs are imposed to compensate the successful party and not to punish the losing party (although costs may sometimes be imposed as a punishment for improper or unreasonable behaviour in the proceedings; see, eg, O 59 rr 7 and 8 of the Rules). As Bramwell B astutely noted in Harold v Smith (1860) 5 H & N 381 (at 385); 157 ER 1229 (at 1231):
Costs as between party and party are given by the law as an indemnity to the person entitled to them : they are not imposed as a punishment on the party who pays them, nor given as a bonus to the party who receives them. Therefore, if the extent of the damnification can be found out, the extent to which costs ought to be allowed is also ascertained.
To this we should add that the indemnity principle as applied in Singapore rests on one bedrock feature. It only extends to costs reasonably incurred and not all costs incurred. Therefore, the principle, does not, in practice, amount to a full and complete indemnity to the successful party against all the expenses to which he has incurred in relation to the proceedings (see Singapore Civil Procedure 2007 at para 59/27/5) unless this has been contractually agreed upon or if the court makes a special order in exceptional circumstances.
Parties entitled to costs
Entitlement of the non-appealing parties to costs
The submissions
(a) This court has the power to award such costs on the basis of O 59 rr 2(2) and 3(2) of the Rules.
(c) This court’s decision in Ng Eng Ghee ([2] supra) affirmed the non-appealing parties’ position on issues that they had consistently raised in the Horizon Board proceedings and the High Court proceedings.
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