Raffles Town Club Pte Ltd v Lim Eng Hock Peter and others (Tung Yu-Lien Margaret and others, third parties)

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 30 September 2010
• Neutral Citation: [2010] SGHC 291
• Plaintiff Counsel: Ang Cheng Hock SC and Lim Dao Kai (Allen & Gledhill LLP)
• Docket Number: Suit No 46 of 2006
• Date: 30 September 2010
• Hearing Date: 04 August 2010
• Subject Matter: Civil Procedure,Costs
• Year: 2010
• Citation: [2010] SGHC 291
• Defendant Counsel: Thio Shen Yi SC and Collin Seah Lee Guan (TSMP Law Corporation),Burton Chen Nan Chung and Lalitha Rajah (Tan Rajah & Cheah),Fong Shu Jan Jasmine (Tan Kok Quan Partnership),Johnny Cheo (Cheo Yeoh & Associates LLC),Michael Anthony Palmer, Andy Lem Jit Min and Toh Wei Yi (Harry Elias Partnership)
• Court: High Court (Singapore)
• Published date: 06 April 2011

Chan Seng Onn J: Introduction

This judgment is in relation to the costs orders to be made in Suit No 46 of 2006 (“Suit 46/2006”). In that action, the plaintiff company, Raffles Town Club Pte Ltd (“RTC”) sued the defendants for breach of their fiduciary duties owed to RTC whilst they were directors of the company (“the Main Action”). That led to three third party claims and one third party counterclaim (“the Third Party Claims”). On 29 May 2010, I gave judgment in favour of the defendants in the Main Action and the Third Party Claims (see Raffles Town Club Pte Ltd v Lim Eng Hock Peter and others (Tung Yu-Lien Margaret and others, third parties) [2010] SGHC 163 (“the RTC Judgment”)). In other words, all the claimants in Suit 46/2006 were unsuccessful.

At the conclusion of the RTC Judgment (at [247]), I invited parties to make submissions on costs if these could not be agreed. At the hearing on 4 August 2010, this invitation was taken up by all sides. Each party had its own take on what costs orders would be fair and just in the circumstances and there was little room for agreement. Having considered all their submissions, I now render my decision with regard to costs in Suit 46/2006.

Background facts

All the background facts pertinent to this judgment on costs have been amply laid out in the RTC Judgment (particularly at [3] – [31]). As this judgment should be read as a corollary to the RTC Judgment, the same references to parties and documents and the same abbreviations have been employed in both judgments. The rationale for the various costs orders to be made in this judgment is best understood in the light of the main findings in the RTC Judgment and I turn now to those findings, setting out also parties’ submissions on costs in relation to the same.

Main findings in the RTC Judgment and parties’ submissions on costs The Main Action

RTC alleged that the Defendants (viz, Peter Lim, Lawrence Ang, William Tan and Dennis Foo) had breached duties owed to the plaintiff company as its directors at the material time by conspiring on a scheme which enabled them to siphon substantial sums of money from RTC for their personal benefit through the following means: Accepting 18,992 members into the Club even though they knew or ought to have known that the maximum number of initial members for an exclusive, premier club on the site was around 7,000; Causing RTC to enter into a sham Management Agreement with EH, under which $78m was paid out by RTC as management fees; Paying themselves some $13m by way of disguised dividends, directors’ remuneration and reimbursement of private expenses; and Earning interest from the loan of $33m that they had procured RTC to make to RTCI.

These claims were defended vigorously by the Defendants on several fronts, including on the ground that the various impugned transactions had been authorised by the shareholders acting collectively. In particular, Peter Lim sought to distance himself from any alleged impropriety on the part of the directors by denying that he was either a director or a shareholder of RTC at all material times. His denial faced considerable opposition from RTC. Even his alleged co-conspirators, Lawrence Ang and William Tan, brought a counterclaim against Peter Lim and Dennis Foo for an indemnity or contribution on the basis that Peter Lim was a director and shareholder of RTC. On this issue, Lawrence Ang and William Tan aligned themselves with the position taken by RTC in the Main Action.

I agreed with the Defendants in the main and dismissed RTC’s claims against them. However, despite Peter Lim’s strenuous disavowal of his role as a director and shareholder, I had no doubt after having considered the extensive evidence led on this issue at the trial, that he had been a de facto director and beneficial shareholder of RTC (see [64] – [68] of the RTC Judgment).

While RTC acknowledged in its submissions that in general costs should follow the event, it submitted that where a successful party has raised inappropriate claims or issues which caused delay and expense that general rule should not apply. Since a substantial portion of the trial and submissions was devoted to addressing Peter Lim’s position that he was neither a director nor a shareholder of RTC at the material time, which position was ultimately rejected, RTC proposed that the amount of costs payable to Peter Lim should be reduced by at least 40%. Further, since the expert witnesses’ evidence on the issue of the valuation of RTC was not dealt with extensively by any of the parties or relied upon in the RTC Judgment, RTC proposed that each party should bear its own costs occasioned by the calling of those expert witnesses.

Peter Lim sought costs to be awarded to him on an indemnity basis, to be borne jointly and severally by Margaret Tung and Lin Jian Wei, or, alternatively, by them and RTC. Lawrence Ang and William Tan proposed that their costs of defending the Main Action be paid by RTC. There was no dispute that RTC had to pay Dennis Foo’s costs in litigating the Main Action. In addition, Peter Lim, Lawrence Ang and William Tan sought a certificate for costs of more than two solicitors under O 59 r 19 of the Rules of Court (Cap 322, R5, 2006 Rev Ed) (“Rules of Court”).

The Third Party Claims

Third party claims were brought against Margaret Tung and Lin Jian Wei, the current directors and shareholders of RTC, as well as against Lawrence Ang and William Tan. The latter pair also instituted a counterclaim against Peter Lim and Dennis Foo.

Lawrence Ang and William Tan v Margaret Tung and Lin Jian Wei

In their third party claim against Margaret Tung and Lin Jian Wei, Lawrence Ang and William Tan alleged that: Margaret Tung and Lin Jian Wei had breached cl 7 of the RTC S&PA dated 6 June 2001, and Recital (F) and cl 4.3 of the Deed dated 18 February 2002; Margaret Tung and Lin Jian Wei had acted in bad faith, unconscionably and conspired with RTC in commencing the Main Action; and In so doing, they were using RTC to unjustly enrich themselves.

With regard to this third party claim, I held that: (a) The Deed had superseded the RTC S&PA (at [212]); (b) The Main Action did not fall within the confines of cl 4.3 of the Deed and that clause had not been breached (at [215]); (c) Neither bad faith nor unconscionability could constitute causes of action (at [218]); (d) It was not the predominant purpose of the Main Action to cause damage or injury to Lawrence Ang and William Tan personally, hence, the claim of conspiracy could not succeed (at [224]); and (e) Since RTC was unsuccessful in the Main Action, the issue of unjust enrichment did not arise (at [226]).

As for costs, Lawrence Ang and William Tan submitted that their costs incurred in instituting this third party claim ought to be paid by RTC. Any costs ordered against them in respect of Margaret Tung and Lin Jian Wei’s successful defence of this third party claim should also be recoverable from RTC.

Peter Lim v Margaret Tung and Lin Jian Wei

Peter Lim shared Lawrence Ang and William Tan’s misgivings of conspiracy amongst Margaret Tung, Lin Jian Wei and RTC with the predominant intention of causing personal damage and injury to him. I found (at [227]) that whatever intention they had to injure him was incidental to the Main Action and dismissed this claim against them.

Despite the failure of his third party claim, Peter Lim submitted that there should be no order as to costs, or, alternatively, that RTC should bear his costs. In respect of the costs of their defending these two third party claims against them, Margaret Tung and Lin Jian Wei took the position that costs should follow the event and that separate costs should be awarded to them since they were represented by separate sets of counsel.

Peter Lim and Dennis Foo v Lawrence Ang and William Tan

Peter Lim and Dennis Foo claimed that the commencement of the Main Action by RTC constituted breaches on Lawrence Ang and William Tan’s part of cll 2.4(c) and 5.3 of the Deed of Settlement entered into by the four of them. I decided in favour of Lawrence Ang and William Tan because (a) cl 2.4(c) did not cover the loans impugned in the Main Action; and (b) cl 5.3 did not apply when allegations of fraud and dishonesty have been made against Peter Lim and Dennis Foo (see [231] – [232]).

Even though Peter Lim and Dennis Foo’s third party claim here was unsuccessful, Peter Lim proposed that there should be no order as to costs, or, alternatively, that RTC should bear his costs. Dennis Foo aligned himself with that position. Lawrence Ang and William Tan submitted that the costs of their defending this third party claim should be payable by Peter Lim and Dennis Foo.

Lawrence Ang and William Tan v Peter Lim and Dennis Foo (in counterclaim)

In their counterclaim, Lawrence Ang and William Tan claimed contribution or indemnity from Peter Lim and Dennis Foo in respect of all aspects of the Main Action on the grounds that: (a) Peter Lim was the controlling mind and driving force behind the business of EH, a beneficial shareholder of both EH and RTC and had received large sums of money from EH and RTC through Lawrence Ang; and (b) Dennis Foo was beholden to Peter Lim and was the latter’s agent. I held (at [236]) that owing to the failure of RTC’s claims against the Defendants the issues of indemnity and contribution, which were contingent on RTC’s success in the Main Action, did not arise.

Lawrence Ang and William Tan submitted that the costs of their instituting this counterclaim should be payable by RTC. Peter Lim and Dennis Foo sought costs to be awarded in their favour, payable by Lawrence Ang and William Tan, or recoverable from RTC.

Issues to be decided

In the exercise of my discretion to arrive at costs orders that are fair and just in respect of who is entitled to costs, what costs are recoverable and who is liable...