Ong Chai Hong (executrix of the estate of Chiang Chia Liang, deceased) v Chiang Shirley and Others

• Jurisdiction: Singapore
• Judgment Date: 06 May 2016
• Date: 06 May 2016
• Docket Number: Suit No 820 of 2012
• Court: High Court (Singapore)

Ong Chai Hong (executrix of the estate of Chiang Chia Liang, deceased)

and

Chiang Shirley and others

[2016] SGHC 91

Edmund Leow JC

Suit No 820 of 2012

High Court

Civil Procedure — Costs — Adverse costs order against litigant in person conducting case in unreasonable manner — Leeway given to litigants in person

Civil Procedure — Judgments and orders — Court clarifying terms of costs order vis- à–vis earlier consent order — Whether clarification amounted to variation of consent order

Facts

There were various disputes amongst the siblings of a wealthy family over the estate of their late father. The executrix, who had been appointed under the deceased’s will, brought an action for various court orders and declarations in respect of the administration of the deceased’s estate. The first to fifth defendants were beneficiaries of the will. The first defendant was a litigant in person while the second to fourth defendants were represented by the same counsel.

The trial was eventually discontinued after parties entered, first, into a consent order dated 16 January 2014 which disposed of the claim against the fifth defendant in relation to the validity of a gift of a property to her under cl 5 (“Clause 5”) of the will, and second, a consent judgment dated 2 July 2014 covering the remaining parties.

Point 7 of the consent order dated 16 January 2014 stated that: “There be no order as to costs with respect to the issue of Clause 5 of the Will.” Pursuant to the terms of the consent judgment and after hearing parties on costs, the court made a costs order on 21 July 2014. The first defendant was ordered to pay 90% of the plaintiff’s costs and the second to fourth defendants were ordered to pay the remaining 10% of the plaintiff’s costs. As between the defendants, the first defendant was ordered to pay 70% of the costs of the second to fourth defendants. The costs were to be agreed or taxed on a standard basis.

At taxation, the defendants could not agree on the relative scope of the costs order vis-à-vis point 7 (“Point 7) of the consent order of 16 January 2014. The first defendant sought a stay of taxation proceedings, as well as an extension of time and leave to appeal against the costs order. The applications were dismissed before the judicial commissioner, though the terms of the costs order vis-à–vis the consent order were clarified on 18 August 2015. In February 2016, the first defendant, obtained leave and extension of time to appeal against the costs order from the Court of Appeal.

Held:

(1) The clarification of the costs order in August 2015 was not a variation of Point 7 of the consent order. Point 7 merely resolved the costs issue between the fifth defendant and the remaining parties, and did not serve to resolve the costs issues among the other remaining parties arising from the dispute between them regarding Clause 5 of the Will. The remaining parties at that point were continuing with the trial, and all costs issues between them were only to be resolved at the end of the trial. As the plaintiff had taken the same position as the fifth defendant in relation to Clause 5, she had prevailed on this issue against the first to fourth defendants, and it would not have made sense for her to forgo the associated costs incurred when the trial was continuing between her and the first to fourth defendants. Thus, the costs order included the unresolved costs incurred by the remaining parties in litigating the dispute on Clause 5 of the Will: at [10].

(2) The clarification of the costs order was merely an exercise of the High Court’s residual inherent jurisdiction under O 92 r 5 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) to clarify the terms of the order and/or to give consequential directions even after the order was pronounced: at [13].

(3) The plaintiff, acting as sole executrix, was an independent party who was forced to bring the action given the acrimonious relationship between the first and second to fourth defendants. She had acted reasonably in seeking court directions to deal with the estate; she did not incur unnecessary costs for the estate or cause unnecessary costs to be incurred by the other parties, and on the issues in dispute for which she had a position, she prevailed. The estate, through the plaintiff, had acted reasonably, so it should not bear its own costs. The first to fourth defendants should be made to bear the estate’s costs: at [32].

(4) The first defendant was mostly unsuccessful in her claims against the second to fourth defendants and against the plaintiff. She only settled the case because she knew that she was headed for defeat on the merits of her various claims; the settlement of the action took place in circumstances that were indicative of likely defeat. The first defendant conducted her case unreasonably and without due regard to the rules and procedures of court, causing the other parties in the litigation to incur unnecessary costs. She commenced a wholly unmeritorious counterclaim regarding emotional distress inflicted on her by the plaintiff, which was withdrawn only on the last day of trial. The firstdefendant also delayed and disrupted proceedings through a mixture of making submissions and giving evidence from thebar whilst cross-examining the other witnesses, despite repeated reminders from the court to refrain from doing so. She repeatedly interrupted counsel and witnesses when they were speaking or attempting to give evidence: at [33] to [37].

(5) It was every layperson’s right to represent himself or herself without the aid of counsel. Justice required that courts did not apply professional standards to litigants in person, who might be involved in a court proceeding for the only time in their lives. However, litigants in person were still subject to the same rules and procedures of court. Whilst the courts were cognisant of the fact that litigants in person were not legally trained, and were thus more indulgent of their mistakes, this did not mean that they could act without regard to these

rules and procedures. Status as a litigant in person alone did not and could not mean that one could conduct a case in an unreasonable manner and yet remained immune from adverse cost orders: at [40] and [41].

(6) The first defendant’s choice to appear as a litigant in person was calculated to avail herself of a degreeof leniency that the court would not give to counsel, who would be bound by rules of professional conduct. The first defendant had behaved unreasonably, even when allowance was made for her inexperience and lack of objectivity. She had taken unfair advantage of the leeway given to her as a litigant in person and pursued her claims in a manner that was prejudicial to the other parties in the case. Thus, she should bear 90% of the plaintiff’s costs and

70% of the second to fourth defendants’ costs: at [40] and [42].

Chiang Shirley v Chiang Dong Pheng [2015] 3 SLR 770 (refd)

Godfrey Gerald QC v UBS AG [2004] 4 SLR(R) 411; [2004] 4 SLR 411 (folld)

Karaha Bodas Co LLC v Perusahaan Pertambangan Minyak dan Gas Bumi

N e g a r a [2006] SGHC 195 (folld)

Ong Chai Hong v Chiang Shirley [2015] 3 SLR 1088 (refd)

Residential Property Act (Cap 274, 2009 Rev Ed) s 3(1)(b) Rules of Court (Cap 322, R 5, 2004 Rev Ed) O 92 r 5

Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 59 (consd); O 22A, O 59 r 3(2), O 59 r 5, O 59 r 6A, O 59 r 7, O 92 r 5

Lee Soo Chye and Subir Singh Grewal (Aequitas Law LLP) for the plaintiff; First defendant in person;

B a lasubramaniam Ernest Yogarajah (UniLegal LLC) for the second, third and fourth defendants.

[Editorial note: The defendant’s appeals to this decision in Civil Appeals Nos 35 of 2015 and 16 of 2016 are scheduled for hearing by the Court of Appeal in the week beginning 14 November 2016. (The hearing date is subject to change. For the most updated hearing dates, please refer to www.supcourt.gov.sg.)]

Edmund Leow JC:

Introduction

was the estate of his wife and the fifth defendant was his mistress. The same counsel represented the second to fourth defendants.

2 The trial was eventually discontinued after parties entered, first, into a consent order dated 16 January 2014 (“the Consent Order”) which disposed of the claim against the fifth defendant, and then a settlement covering the remaining parties that resulted in a consent judgment dated 2 July 2014 (“the Consent Judgment”). Pursuant to the terms of the Consent Judgment and after hearing parties on costs, I made a costs order on 21 July 2014 (“the Costs Order”). The first defendant sought a stay of taxation proceedings, as well as leave and an extension of time to appeal against the Costs Order. I clarified the terms of the Costs Order on 18 August 2015 and dismissed the first defendant’s applications. The first defendant, being dissatisfied with the Costs Order, applied to the Court of Appeal for leave and extension of time to appeal against my decision. The Court of Appeal allowed the application and the first defendant has lodged a notice of appeal against the Costs Order. I thus set out the reasons for my decision.

Factual and procedural background

3 The trial to determine the assets belonging to the Chiang estate was heard in two tranches, the first in January 2014, and the second in July 2014. The action against the fifth defendant, in relation to the validity of a gift of aproperty to her under cl 5 (“Clause 5”) of the Will, was discontinued after the parties entered into the Consent Order on 16 January 2014, midway through the sixth day of the proceedings. The relevant portion of the Order is reproduced as follows:

…

7. There be no order as to costs with respect to the issue of Clause 5 of the

Will.

(“Point 7 of the Consent Order”)

4 On 2 July 2014, shortly after the start of the second tranche, the plaintiff and the other four defendants entered into a settlement, which resulted in the Consent Judgment. Pursuant to point 9 of the Consent Judgment that...