Tan Boon Hai (on behalf of himself and all other unsuccessful candidates in the Singapore Hainan Hwee Kuan 1999/2000 Management Committee Elections) v Lee Ah Fong and Others

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 27 November 2001
• Neutral Citation: [2001] SGCA 77
• Docket Number: Civil Appeal No 600043 of,Originating Summons No 1022 of
• Date: 27 November 2001
• Year: 2001
• Published date: 19 September 2003
• Plaintiff Counsel: Yang Ing Loong and Christopher Tan Teow Hin (Allen & Gledhill)
• Citation: [2001] SGCA 77
• Defendant Counsel: Lee Chin Seon and John Tan Kim Chiang (Angela Wong & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: Costs,Taxation,Civil Procedure,Rules of Court O 59 r 36,Whether judge's discretion fettered in reviewing registrar's decision,Application for review of registrar's taxation of costs,Nature of judge's jurisdiction in dealing with application for review of registrar's decision

(delivering the judgment of the court): This appeal arises out of the decision of GP Selvam J (see [2001] 2 SLR 496), in which he held that a judge, hearing an application for review of taxation of costs under O 59 r 36 of the Rules of Court, is not fettered by the discretion exercised by the registrar in determining the quantum of any item under review, and may, if he considers appropriate, substitute his award on the quantum in place of that awarded by the registrar. The issue raised in this appeal is of considerable importance and relates to the nature of the jurisdiction of a judge in dealing with an application for review of taxation of costs under O 59 r 36 of the Rules of Court.

Background facts

The relevant facts giving rise to the appeal are as follows. The appellant, Mr Tan Boon Hai, and those whom he represents in this appeal, and the 33 defendants against whom proceedings were brought in the court below, are all members of a clan association called the Singapore Hainan Hwee Kuan (`the association`). Some two years ago, a dispute arose over the election of members to the management committee of the association. It was alleged by some members that there were irregularities at the election of the association`s 1999/2000 Management Committee during the Annual General Meeting held on 30 May 1999. Mr Tan in a representative capacity on behalf of himself and all the unsuccessful candidates at the election initiated proceedings against the association and 33 members of the association, who were the successful candidates. In those proceedings, Mr Tan sought a declaration that the election held on 30 May 1999 was null and void for irregularity, and, alternatively, an order restraining the 33 members from acting or holding themselves out as members of the association`s management committee. Mr Tan also sought an order for a fresh election to be held and an order to freeze the funds of the association.

Soon after the commencement of the proceedings, on 29 July 1999, an interim order was obtained by Mr Tan partially freezing the association`s bank account. The case proceeded to trial and was heard for some nine days with the cross-examination of witnesses. A further period of 15 days was given by the court for the continuation of the hearing. However, no further hearing took place, as the parties came to a settlement. The action was then discontinued by Mr Tan with the consent of the defendants, but the consent was given subject to Mr Tan paying 80% of the costs, such costs to be taxed on the standard basis, if not agreed. The parties failed to reach agreement on the quantum of the costs, and accordingly the costs had to be taxed.

In those proceedings, there were three groups of defendants. The first defendant, the association, was independently advised and at the trial was represented by its own counsel. The second group consisted of 17 defendants, namely, the second to seventeenth and twenty-first defendants. They were separately advised by their solicitors and at the trial they were represented by their own counsel. The remaining defendants formed the third group and they had their own solicitors and counsel in those proceedings.

Pursuant to the terms on which Mr Tan discontinued the action, the second to seventeenth and the twenty-first defendants (collectively called `the 17 defendants`) proceeded first to present their bill of costs for taxation. Pending the taxation of this bill, the other two groups of defendants held back the submission of their respective bills of costs. Hence, there will be another two bills of costs for taxation relating to the same proceedings.

In their bill of costs, the 17 defendants claimed a sum of $250,000 for work done in the cause or matter as described in section 1 of the bill. The bill was taxed by an assistant registrar, who allowed a sum of $100,000 for this section of the bill. Both Mr Tan and the defendants were dissatisfied with the amount awarded and applied to the assistant registrar to review her decision with respect to this amount pursuant to O 59 r 34 of the Rules of Court. On review, the assistant registrar reduced the amount to $70,000. The 17 defendants, being dissatisfied with this amount allowed by the assistant registrar on such review, applied to a judge-in-chambers for an order to review the taxation of this amount pursuant to O 59 r 36 of the Rules of Court.

The decision below

The application came before GP Selvam J who dealt with it in the following manner. He considered that he was not bound by the decisions of the Court of Appeal in Diversey (Far East) v Chai Chung Ching Chester (No 2) [1993] 1 SLR 542 , and Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1993] 1 SLR 185 on the ground that the law had undergone a `sea of change` since the two cases. He held that the `new rule` in the present Rules of Court, which he said `came into effect on 1 February 1992`, allowed him to have the right and duty to hear the matter de novo, and take into account all the circumstances of the case and make a completely fresh decision. He relied on the decision of the English Court of Appeal in Madurasinghe v Penguin Electronics (a firm) [1993] 3 All ER 20[1993] 1 WLR 989, where the court considered a similar rule under the County Court Rules 1981 in England. He also relied by analogy on those cases where a judge hears an appeal from the decision of the registrar on assessment of damages. In such case, it has been held by this court that a judge in hearing such appeal is not fettered by the amount awarded by the registrar and is entitled to deal with the appeal as if the matter came before him the first time: see Chang Ah Lek v Lim Ah Koon [1999] 1 SLR 82 which followed and adopted the decision of the House of Lords in Evans v Bartlam [1937] AC 473[1937] 2 All ER 646. Selvam J then expressed his opinion that the power of a judge in dealing with an application for review of taxation of costs and with an appeal from the decision of the registrar on assessment of damages does not depend on the terminology of `review`, `rehearing` or `appeal` as found in the rules; these terms mean the same thing, namely, the judge hearing the matter deals with it de novo. Thus, considering himself armed with an unfettered discretion, the judge proceeded to reconsider the circumstances of the case. He set aside the amount awarded by the assistant registrar and awarded the sum of $100,000 in lieu. He further awarded $1,500 as the costs of the review before him. Against his decision, this appeal is now brought.

The appeal

Before we turn to consider the arguments raised in the appeal we should mention one preliminary matter. The 17 defendants, the respondents in this appeal, did not file the respondents` case, as they were required to do under the rules. However, through their counsel they put in a written `skeletal submission` and intended to obtain leave of the court, by an oral application, to argue against the appeal before us. Counsel for the appellant objected to this course of conduct on the part of the respondents. In response, counsel for the respondents explained that the reason for not filing the respondents` case was that the respondents wished to save further costs and expenses in the litigation, and applied orally for leave to make submission before us in this appeal. We did not find such explanation acceptable, and accordingly we refused leave to counsel for the respondents to make any submission on behalf of the respondents in resisting the appeal. We also refused to consider the written skeletal submission filed in court.

We now turn to the merits of the appeal. Before us, Mr Yang Ing Loong, counsel for Mr Tan, contends that the judge erred in holding that there was a `sea of change` in the Rules of Court, and that the decisions of this court in Diversey (supra) and Jeyaretnam (supra) are still good law and the judge therefore was bound by these decisions and ought to follow them. Had the judge followed these decisions, he would not have interfered with the amount awarded by the assistant registrar, as he did not find that the assistant registrar had committed an error of principle or any material error on the quantum.

Rules of Court

We need to consider first whether there has been a `sea of change` in our rules of court governing the review by a judge of taxation of costs since the decisions of this court in Diversey (supra) and Jeyaretnam (supra) . At the time when these two cases were decided, the rules then in force were the Rules of the Supreme Court 1970 (`the 1970 Rules`), and the relevant rules governing the review by a judge of taxation of costs were found in O 59 r 36, which so far as relevant provided as follows:

(1) Any party who is dissatisfied with the decision of the Registrar to allow or to disallow any item in whole or in part on review under Rule 34 or 35, or with the amount allowed in respect of any item by the Registrar on any such review, may apply to a Judge for an order to review the taxation as to that item or part of an item, if, but only if, one of the parties to the proceedings before the Registrar requested the Registrar in accordance with Rule 35 (3) to state the reasons for his decision in respect of that item or part on the review.

...

(4) Unless the Judge otherwise directs, no further evidence shall be received on the hearing of an application under this Rule, and no ground of objection shall be raised which was not raised on the review by the Registrar but, save as aforesaid, on the hearing of any such application the Judge may exercise all such powers and discretion as are vested in the Registrar in relation to the subject-matter of the application.

(5) On an application under this Rule, the Judge may make such order as the circumstances require, and in particular may order the Registrar`s certificate to be amended or, except where the dispute as to the item under...