Resorts World at Sentosa Pte Ltd v Goel Adesh Kumar and another appeal

• Jurisdiction: Singapore
• Judge: Judith Prakash JA,Tay Yong Kwang JA,Steven Chong JA
• Judgment Date: 02 October 2018
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeals Nos 127 of 2017 and 21 of 2018
• Date: 02 October 2018

Resorts World at Sentosa Pte Ltd

and

Goel Adesh Kumar and another appeal

[2018] SGCA 58

Judith Prakash JA, Tay Yong Kwang JA and Steven Chong JA

Civil Appeals Nos 127 of 2017 and 21 of 2018

Court of Appeal

Civil Procedure — Costs — Principles — Third party proceedings — Plaintiff bringing claim where at least one of the issues should have been litigated between plaintiff and third party — Defendant commencing third party proceedings — Whether plaintiff should bear costs of third party proceedings

Civil Procedure — Offer to settle — Joint offer to settle made by defendant and third party not withdrawn and did not expire before disposal of claim — Plaintiff rejecting offer to settle but obtaining judgment not more favourable than terms of offer to settle — Offer to settle was reasonable, serious and genuine and aimed at inducing or facilitating settlement — Whether default costs consequences provided under O 22A r 9(3) Rules of Court (Cap 322, R 5, 2014 Rev Ed) should apply — Order 22A r 9(3) Rules of Court (Cap 322, R 5, 2014 Rev Ed)

Held, allowing RWS's Appeal and dismissing Mr Goel's Appeal:

(1) Under O 22A r 9(3) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the ROC”), where a defendant made an offer to settle that the plaintiff did not accept, unless the court ordered otherwise, the plaintiff was entitled to costs on the standard basis to the date the offer was served and the defendant was entitled to costs on an indemnity basis from that date, provided: (a) the offer was not withdrawn and had not expired before the disposal of the claim; and (b) the plaintiff obtained a judgment that was not more favourable than the terms of the offer to settle: at [17].

(2) The Judge was correct to apply the general costs consequences provided for under O 22A r 9(3) of the ROC. First, it was undisputed that Mr Goel had rejected the First Offer. Second, the First Offer was not withdrawn before liability in the Suit was disposed of on appeal on 17 August 2016, nor did the First Offer expire, given that the offer did not specify any time within which it had to be accepted and hence remained open for acceptance any time before the final disposal of the Suit on appeal. Third, the judgment sum of S$45,915.74 obtained by Mr Goel was not, even when taken together with the costs incurred by Mr Goel up to the date of the First Offer, more favourable than the settlement sum of S$62,000 offered in the First Offer. The costs incurred should be calculated only on the Magistrate's Court scale, and they were unlikely to exceed the difference between the judgment sum awarded and the settlement sum offered: at [18] and [19].

(3) The quintessential situation in which the court might exercise its discretion to vary the default costs consequences specified under O 22A r 9(3) of the ROC was where the offer to settle was not a reasonable, serious or genuine offer that was aimed at inducing or facilitating settlement. In determining whether an offer to settle was reasonable, serious or genuine, it would suffice that there was a legitimate basis for the offer made and the offer was not illusory. This meant that the offer should not be made just to entail the payment of costs on an indemnity basis, and should not be one where the offeror effectively expected the other party to capitulate: at [20] and [22].

(4) There was no reason to conclude that the Judge ought to have exercised his discretion to depart from the general rule on costs provided under O 22A r 9(3) of the ROC. The First Offer was a reasonable, serious and genuine offer to settle because the offer to settle the claims in the Suit for S$62,000 was clearly not an illusory one, and there was a legitimate basis for the sum proposed: at [20], [21] and [25].

(5) A plaintiff should be ordered to bear the costs of third party proceedings if: (a) the plaintiff had acted improperly and unreasonably in instituting its main claim against the defendant instead of the third party (regardless of whether the defendant had acted properly and reasonably in instituting the third party proceedings); and (b) the third party proceedings were inevitable as a direct result of the plaintiff's claim. Two scenarios in which the plaintiff's conduct would justify such a costs order included: (a) when the real issue at the heart of the main claim was one that ought to be properly litigated between the plaintiff and the third party, rather than the plaintiff and the defendant; and (b) when the main claim was clearly against the wrong party and there was clearly another party that the plaintiff should have sued: at [28].

(6) In a situation where an action brought by a plaintiff raised a claim which implicated a party beyond the defendant, and at least one of the issues ought to be litigated between that plaintiff and a third party (and not between that plaintiff and the defendant), that plaintiff could be said to have commenced the claim in respect of those issue(s) against the wrong party. In such a situation, the plaintiff might be found to have acted improperly and unreasonably in failing to include the third party as a co-defendant to its claim in respect of the aforementioned issue(s), and in failing to do so, made it inevitable for the defendant to commence third party proceedings to seek an indemnity or contribution in respect of that issue: at [29].

(7) Mr Goel (and not RWS) should pay 80% of SATS's costs in the Third Party Proceedings on a standard basis on the High Court scale. Mr Goel had acted improperly and unreasonably in commencing the Suit against only RWS even though it should have been plain and obvious to Mr Goel that that the specific issue in relation to the alleged tortious acts of SATS's APOs ought to have been litigated between himself and SATS (and not between himself and RWS). It was evident from the pleadings and the answers to the interrogatories, as well as the terms of the joint offers made by RWS and SATS, that Mr Goel knew that some of the tortious acts might have been committed by two of SATS's APOs. This was vindicated by the Judge's finding that SATS was liable to Mr Goel, and also by Mr Goel's failed attempt to add SATS as a co-respondent to his earlier appeal against the Judge's decision on liability. Mr Goel, by wrongly commencing the Suit against RWS in respect of the tortious acts of SATS's APOs, made it inevitable for RWS to commence the Third Party Proceedings against SATS: at [33] to [37].

Case(s) referred to

Cheong Ghim Fah v Murugian s/o Rangasamy [2004] 3 SLR(R) 193; [2004] 3 SLR 193 (refd)

Goel Adesh Kumar v Resorts World at Sentosa Pte Ltd [2015] SGHC 289 (refd)

LK Ang Construction Pte Ltd v Chubb Singapore Pte Ltd [2004] 1 SLR(R) 134; [2004] 1 SLR 134 (refd)

Man B&W Diesel S E Asia Pte Ltd v PT Bumi International Tankers [2004] 3 SLR(R) 267; [2004] 3 SLR 267 (folld)

NTUC Foodfare Co-operative Ltd v SIA Engineering Co Ltd [2018] 2 SLR 1043 (folld)

Ong & Ong Pte Ltd v Fairview Developments Pte Ltd [2015] 2 SLR 470 (refd)

RBG Resources plc v Banque Cantonale Vaudoise [2004] SGHC 167 (refd)

Singapore Airlines Ltd v Fujitsu Microelectronics (Malaysia) Sdn Bhd [2001] 1 SLR(R) 38; [2001] 1 SLR 532 (distd)

Singapore Airlines Ltd v Tan Shwu Leng [2001] 3 SLR(R) 439; [2001] 4 SLR 593 (folld)

Telemedia Pacific Group Ltd v Credit Agricole (Suisse) SA [2015] 4 SLR 1019 (folld)

Facts

A quarrel erupted in the early hours of 22 April 2012 between Mr Goel Adesh Kumar (“Mr Goel”), who was visiting the casino at Resorts World Sentosa (“the Casino”) owned and operated by Resorts World at Sentosa Pte Ltd (“RWS”), and two other patrons of the Casino. Mr Goel sustained injuries to his shoulder after being escorted into a separate room by the Casino's security staff, comprising both RWS's own security officers and the auxiliary police officers (“APOs”) employed by SATS Security Services Pte Ltd (“SATS”), and was detained for several hours before being released (“the Incident”).

On 29 May 2013, Mr Goel commenced Suit No 484 of 2013 (“the Suit”) against RWS, claiming that RWS was vicariously liable for the acts of assault, battery and wrongful imprisonment committed by both RWS's security officers and SATS's APOs, and that RWS was negligent in failing to keep him safe and secure while he was within the premises. Mr Goel sought a total sum of S$484,196.16 for, among other things, damages for the pain and suffering and loss of amenities arising from his injuries, loss of liberty, medical and transport costs, loss of pre-trial income, and aggravated and exemplary damages for RWS's “haughty and high-handed attitude” displayed during and after the Incident. RWS joined SATS as a third party to the Suit on 19 November 2013 on the basis of a contractual indemnity provided for in an agreement between RWS and SATS (“the Third Party Proceedings”). On 2 July 2014, RWS and SATS made a joint offer to fully and finally settle Mr Goel's claim in the Suit for S$62,000, with all parties to bear their own costs (“the First Offer”). Mr Goel rejected the First Offer. RWS and SATS subsequently made a second joint offer to fully and finally settle the Suit for S$100,000, but Mr Goel also rejected this offer.

Following the trial of the Suit, the High Court judge (“the Judge”) awarded Mr Goel only S$45,915.74 in damages. The Judge held that RWS's security officers were 80% liable and SATS's APOs were 20% liable in respect of only the torts of wrongful imprisonment, assault and battery committed against Mr Goel. The Judge rejected the claims for damages for pre-trial loss of earnings and for aggravated and exemplary damages. The Judge found that RWS and SATS were respectively vicariously liable only for the tortious acts of their own employees. Finally, the Judge held that the Third Party Proceedings were redundant, given that RWS was vicariously liable only for the acts of its own security officers and hence there was no basis for RWS to claim an indemnity or contribution from SATS for...