Nim Minimaart v MCST Plan No 1079

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 28 February 2013
• Neutral Citation: [2013] SGHC 53
• Published date: 16 May 2013
• Date: 28 February 2013
• Year: 2013
• Hearing Date: 15 November 2012,23 July 2012,15 February 2012,30 July 2012
• Plaintiff Counsel: Appellant in person
• Citation: [2013] SGHC 53
• Defendant Counsel: Teh Ee-Von (Infinitus Law Corporation)
• Court: High Court (Singapore)
• Docket Number: Bill of Costs No 119 of 2011 (Registrar's Appeal Subordinate Courts No 3 of 2012)

Judith Prakash J:Introduction

This matter is an appeal against the review of a taxation of a bill of costs in the District Court.

There is a long history to this litigation. Certain salient features must be highlighted in order to understand the nature of the arguments before me. The appellant, Nim Minimaart, which is a firm owned by one Mr Sambasivam Kunju, was the plaintiff in District Court Suit No 1263 of 2008 (“the DC Suit”). At all material times, Mr Sambasivam Kunju appeared in person. The defendants in the DC Suit (and the respondents in the appeal before me) are the management corporation (“the first defendant”) and the members of the management council of a strata title development which had rented certain premises in the development to the plaintiff for the purpose of operating the business of a mini-supermarket.

The plaintiff brought the DC Suit in order to obtain specific performance of a particular clause in the licence agreement governing the plaintiff’s use of the premises. The plaintiff’s claim was that he was entitled to be granted an extension of the licence for a period of one year from January 2008 to January 2009. The defendants resisted the claim and the DC Suit came on for trial between 11and 13 March 2009 (“the first trial”). On the last day of the first trial, a consent order (purportedly following from a settlement reached between the parties) was entered. The first trial, accordingly, did not continue.

On 21 March 2009, the plaintiff wrote to the Registrar of the District Court asking for a re-trial of the matter. Subsequently, he filed a formal application to set aside the consent order and to obtain a re-trial. This application was dismissed by the Assistant Registrar and the plaintiff’s appeal to the District Judge was also unsuccessful. The plaintiff then appealed to the High Court and this appeal was allowed (see Nim Minimaart (a firm) v Management Corporation Strata Title Plan No 1079 [2010] 2 SLR 1). The consent order was set aside by Steven Chong JC (as he then was) (“the Judge”) and a new trial before a different District Judge was ordered. In relation to costs, the order made was “[t]he parties are to bear their own costs for this appeal and the costs below”.

The DC Suit was retried over eight days in December 2010 (“the second trial”). In July 2011, the plaintiff’s claim was dismissed. At a subsequent hearing, the trial judge awarded costs to the defendants. The plaintiff then filed an appeal against the dismissal (District Court Appeal No 27 of 2011). For various reasons, this appeal took some time to be heard and it was not dealt with until 23 October 2012 when it was dismissed by the High Court. It was only after that dismissal that I heard the present appeal in relation to the taxation of costs.

In the meantime, the defendants had, on 22 August 2011, filed their bill of costs (“the Bill”). The Bill was taxed by the trial judge in her capacity as Deputy Registrar. The defendants had claimed $55,000 in respect of Section 1 costs but this was reduced to $35,000 upon taxation. The defendants were allowed $1,200 for Section 2 costs, $9,233.60 for Section 3 disbursements on which GST was not chargeable and $1,454.60 for Section 3 disbursements on which GST was chargeable.

The plaintiff was not satisfied with the taxation. He applied for a review of the taxing master’s award and the review was heard on 28 December 2011. The grounds on which the plaintiff wanted the award reviewed were the following:The defendants had been wrongly awarded costs for the first trial in respect of which each party was to bear its own costs;The defendants had failed to provide sufficient particulars in the bill to support their claim under Section 1 that 280 hours of work had been done;There were numerous mistakes in the Bill and the defendants had failed to pay $500 in costs awarded to the plaintiff for the amendment of the Bill;The defendants wrongly claimed disbursements for the first trial and also should not have been allowed $8,202 for using a transcription service;Moreover, claims for oath fees were wrongly calculated while sums allowed for transport and parking, facsimile, postage and incidentals totalling $750 were excessive; andThe defendants had caused numerous delays (totalling 105 days) in the hearing of the DC Suit.

On review, the District Judge (“DJ”) found no reason to disagree with the taxing master’s decision. He dismissed the review with costs which he fixed at $800 inclusive of disbursements. The DJ did not give written grounds of decision. The notes of evidence of the hearing before him record his oral judgment as follows:

Court: Thank parties for their submissions. All things considered, I see no merit in the review and have no reason to disagree with the amounts awarded by the Deputy Registrar. The bill, in my view, complies with the PD and the sum of $35,000 for section 1 would be reasonable. Even if I were wrong in interpreting the High Court order and discount the three days of the initial trial, $35,000 for an 8 day DC trial would still be fair. I also accept the Defendants submissions regarding the GST disbursements and the need for the digital recording, which in my view is a reasonable disbursement.

The review is dismissed with costs. Parties to submit on a reasonable amount.

The appealGeneral principles

On 18 January 2012, the plaintiff filed the present appeal against the DJ’s decision. He wants that decision set aside and for there to be a review of the taxing master’s award on the Bill.

The appeal falls under O 55C of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) as it is against the decision of a district judge in chambers. Rule 1 of O 55C provides that appeals shall lie to a judge of the High Court in chambers from any order or decision of a district judge in chambers. Under s 22 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed), all appeals to the High Court in the exercise of its appellate civil jurisdiction are by way of re-hearing but this does not change the essential nature of the case which is an appeal and not a review.

It is settled law under the present Rules of Court that when the decision of a taxing master goes up for a review by a more senior judicial officer, the reviewing officer hears the matter de novo and is not bound in any way by the exercise of discretion by the taxing master. He is entitled to substitute his own discretion for that of the taxing master and to change the quantum awarded to such an extent as appears correct to him, although he should give due weight to the taxing master’s decision on quantum: see Tan Boon Hai v Lee Ah Fong and others[2001] 3 SLR(R) 693.

The position is different when there is an appeal against the decision made on review. When an appeal is lodged against a judicial decision that has been made in the exercise of a judicial officer’s discretion, in order to overrule that exercise of discretion it must be shown that the judicial officer had erred in principle or had reached a conclusion that is plainly wrong: see Golden Shore Transportation Pte Ltd v UCO Bank and another appeal[2004] 1 SLR(R) 6 at [44]. In the earlier Court of Appeal case of Lian Soon Construction Pte Ltd v Guan Qian Realty Pte Ltd[1999] 1 SLR(R) 1053, the court observed at [34]:

It is trite law that an appeal against the exercise of a judge’s discretion will not be entertained unless it be shown that he exercised his discretion under a mistake of law, in disregard of principle, under a misapprehension as to the facts, or that he took account of irrelevant matters, or the decision reached was “outside the generous ambit within which a reasonable disagreement...