Ong Jane Rebecca v Lim Lie Hoa and Others

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 25 March 2008
• Neutral Citation: [2008] SGHC 44
• Docket Number: Bill of Costs No 118 of 2006 (Summonses Nos 4600 and 4615 of 2007)
• Date: 25 March 2008
• Year: 2008
• Published date: 31 March 2008
• Plaintiff Counsel: Andrew Ho Yew Cheng (Tan Peng Chin LLC)
• Citation: [2008] SGHC 44
• Defendant Counsel: Khoo Boo Jin (Wee Swee Teow & Co)
• Court: High Court (Singapore)
• Subject Matter: Whether air miles were disbursements,Civil Procedure,Disbursements,Meaning of "disbursement",Costs

25 March 2008

Choo Han Teck J:

Introduction

1 The proceedings before me were applications by the plaintiff and the first defendant for a review of the learned Assistant Registrar Ms Dorcas Quek’s (“the AR”) taxation of Bill of Costs No 118 of 2006 (“BC 118”). BC 118 was filed by the plaintiff on 29 May 2006, having been awarded costs of the inquiry proceedings (“the Inquiry”) in Originating Summons No 939 of 1991 (“OS 939”) against the first defendant. Briefly, the AR awarded a total sum of £78,981.66, HK$217,132.37 and S$559,853.45 for section 3 of BC 118 (in regard of the plaintiff’s disbursements for the Inquiry) and a sum of S$50,000 for section 2 of BC 118 (in regard of the plaintiff’s solicitors’ costs for taxation of section 3 of BC 118). Taxation of section 1 of BC 118 (in regard of the plaintiff’s legal costs for the Inquiry) was stayed by an order of court dated 7 November 2006 and does not form part of the subject matter for review here.

Review of section 3 of BC 118

2 The plaintiff has sought a review of most of the items taxed under section 3 of BC 118. Of significance are 96 items of disbursements, totalling £133,592.20, that were charged to the plaintiff’s supplementary American Express credit card (“Credit Card Disbursements”) given to her by one Norman Frenchman (“Norman”). The Credit Card Disbursements consisted mainly of courier charges of documents, costs of hotel accommodation, miscellaneous business services rendered by the hotels, costs of air travel (to and from Singapore) and excess baggage charges. They were all disallowed by the AR on the basis that the plaintiff had failed to show that the Credit Card Disbursements were her disbursements. The AR held that the plaintiff had only made a bare assertion that she had repaid Norman the Credit Card Disbursements that were charged to him on the supplementary card and that she had tendered no evidence on when she paid for the Credit Card Disbursements and whether she paid for all of them. The AR further added that given the considerable amount of the Credit Card Disbursements, it was very plausible that Norman could have agreed to pay for the plaintiff without her having to return the full sum.

3 After the AR had given her decision on the Credit Card Disbursements on 14 May 2007, Norman filed an affidavit on 11 June 2007 whereby he testified that he had never at any point reached an agreement with the plaintiff that would exonerate her from repaying him the sums incurred by her under the supplementary card. Norman further testified in his affidavit that the plaintiff has so far repaid him all the Credit Card Disbursements save for the sum of £24,962.62 (“the remaining debt”). Norman’s affidavit was, however, not admitted as evidence by the AR at the next taxation hearing on 4 July 2007. The first defendant argued at the hearing that, notwithstanding Norman’s affidavit, no proof of debt had been filed in respect of the claim by Norman in the plaintiff’s Individual Voluntary Arrangement (“IVA”) in UK and both the “Claim” and “Agreed Claim” columns in the plaintiff’s IVA statement reflected “£0.00”. An IVA is a scheme of arrangement made under the UK insolvency law. The AR agreed that the remaining debt was not proved in the plaintiff’s IVA in UK. In the AR’s own words:

It [was] only Norman Frenchman’s word in his affidavit, and Plaintiff (in her statement of affairs). There [was] no clear evidence that these were the sums that the Plaintiff was obliged to pay Norman. There [was] also no certainty as to the correctness of the quantum owed.

The AR (relying on the authority of Braga v Braga [1949] SLR 52 (“Braga”)) also took the view, in respect of the remaining debt, that liability to repay (in contrast to an expense actually paid out by a party) is insufficient to constitute a proper disbursement that could be recovered under taxation. Thus, the AR declined to change her decision on the Credit Card Disbursements.

4 Before me, the plaintiff argued that the AR was wrong to have rejected Norman’s clear evidence. The plaintiff also sought leave to adduce letters from the plaintiff’s IVA supervisors (leave to adduce such evidence below was denied) so as to explain the significance of the “Claim” and “Agreed Claim” columns in the plaintiff’s IVA statement and to explain that although no proof of debt has been filed by Norman, he is, nevertheless, entitled to make a claim later when there are sufficient funds to enable a distribution to the plaintiff’s creditors. The plaintiff also took issue with the AR’s definition of “disbursement” for the purposes of taxation and argued that “disbursement” is not limited to actual payment or expenditure, but should include a loan or debt.

5 Leaving aside the question of the definition of “disbursement” (which I will deal with later at [10], and, in any event, has no bearing on the Credit Card Disbursements) and considering the evidence before me on the whole, I am of the view that the AR’s order on the Credit Card Disbursements should not be disturbed, and I do not think that granting the plaintiff leave to adduce the letters from the plaintiff’s IVA supervisors will make a difference to this outcome (and accordingly, leave is disallowed). The bottom line remains that Norman has not filed a proof of debt in respect of the remaining debt, and if he was indeed bent on recovering all the Credit Card Disbursements from the plaintiff, he would have done so. Further, there is only a bare assertion from Norman that the plaintiff has so far repaid him £108,629.58 out of the Credit Card Disbursements. He has not exhibited any cheque or evidence in his affidavit to show how the alleged payment of £108,629.58 was made to him and when they were made to him. I find it puzzling how the plaintiff, in the first place, managed to secure funds to repay Norman, given that she is under the IVA regime in UK. It seems more probable than not that Norman was prepared to pay for all the plaintiff’s expenses incurred on the supplementary card, especially since he had allowed her a free hand in chalking up huge expenses on the supplementary card. Given the lack of evidence that the plaintiff had paid for all the Credit Card Disbursements, I would agree with the AR’s decision to disallow these 96 items.

6 Besides the Credit Card Disbursements, the plaintiff, interestingly, also sought to claim the sum of £625.00 (item 110), being the estimated costs for an airplane ticket for travel to Singapore from London on 10 March 2001. The AR disallowed this item as she was of the opinion that the airplane ticket, which was redeemed using “airline miles” was not a disbursement “made” by the plaintiff as it was merely a “hypothetical disbursement”. The plaintiff submitted that the AR was wrong in disallowing item 110 and...