Tommy Choo, Mark Go & Partners v Kuntjoro Wibawa and other matters

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 14 September 2015
• Neutral Citation: [2015] SGHC 239
• Court: High Court (Singapore)
• Docket Number: Bill of Costs No 173 of 2013 (Summons No 3317 and 3318 of 2014), Originating Summons No 204 of 2014 and Bill of Costs No 173 of 2014 (Summons No 5186 of 2014)
• Published date: 16 September 2015
• Year: 2015
• Hearing Date: 14 November 2014,17 March 2015,10 October 2014,18 March 2015,18 June 2015
• Plaintiff Counsel: Singa Retnam (instructed counsel) and Ling Leong Hui (Tommy Choo Mark Go & Partners)
• Defendant Counsel: Ooi Oon Tat (Judy Cheng & Co),Bachoo Mohan Singh (Bachoo Mohan Singh Law Practice),Singa Retnam (instructed counsel) and Ling Leong Hui (Tommy Choo Mark Go & Partners)
• Subject Matter: Civil Procedure,Costs,Taxation
• Citation: [2015] SGHC 239

Choo Han Teck J:

Mr Kuntjoro Wibawa engaged the services of TCMGP in July 2011 to act for him in a matter concerning his father’s estate and discretionary trusts in Jersey. Mr Ling Leong Hui was the solicitor in TCMGP who advised Mr Wibawa. Mr Ling felt that he was not sufficiently familiar with the law on trusts and so instructed Mr Bachoo Mohan Singh as counsel. In August 2011, Mr Wibawa signed a warrant to act, which authorised TCMGP to act on his behalf. The warrant to act also sets out TCMGP and Mr Singh’s charging rates. TCMGP commenced Suit 650 of 2011 (“Suit 650”) on behalf of Mr Wibawa in respect of his claim on 21 September 2011. That suit is not before me and is not relevant for the purposes of the proceedings before me.

For the next two years after August 2011, Mr Singh and TCMGP acted on behalf of Mr Wibawa in Suit 650 and related matters, which included interlocutory applications arising from Suit 650, and applications for advancement of trust monies in the Royal Court of Jersey. But the parties eventually decided to terminate their solicitor-client relationship. Mr Wibawa discharged TCMGP and Mr Singh on 3 June 2013. Suit 650 was still in the interlocutory stage at that time and general discovery had just been completed. The parties had just filed their lists of documents.

After TCMGP was discharged, it prepared a bill of costs for their costs, based on the rates set out in the warrant to act. Mr Wibawa’s new solicitors initially asked TCMGP to proceed with taxation but qualified that it was “subject to all of [Mr Wibawa’s] legal rights including the agreement on costs” between them. Subsequently, Mr Wibawa resisted taxation on the basis that the terms set out in the warrant to act were superseded by an oral agreement. He asserted that the oral agreement was that he only had to pay Mr Singh a sum of $5,000, which was later increased to $10,000, every month. He further asserted that under this oral agreement, the terms in the warrant to act were only going to be used as a basis for taxing the party and party costs if he succeeded in Suit 650.

TCMGP applied in Summons No 3068 of 2013 for an order that they be allowed to draw up a bill of costs and for the bill to be taxed on an indemnity basis. Mr Wibawa resisted this application by arguing that the oral agreement should apply instead. On 30 August 2013, Andrew Ang J ordered that the bill of costs be taxed. TCMGP commenced Bill of Costs No 173 of 2013 (“BC 173/2013”) on 21 October 2013.

On 6 March 2014, with the taxation proceedings in BC 173/2013 still ongoing, Mr Wibawa filed Originating Summons No 204 of 2014 (“OS 204”) for a declaration that the warrant to act was void and that he had already paid Mr Singh all his legal fees which were incurred in accordance with the oral agreement they had. Concurrently, Mr Wibawa filed an application for a stay of BC 173/2013 in Summons No 1207 of 2014. The learned assistant registrar (“the AR”) was of the view that the proceedings in OS 204 had a direct bearing on BC 173/2013 and thus allowed the stay application. TCMGP appealed against this decision in Registrar’s Appeal No 94 of 2014 (“RA 94”), which was fixed before me. I allowed the appeal and ordered that the proceedings in BC 173/2013 should resume: see Tommy Choo, Mark Go & Partners v Kuntjoro Wibawa @ Wong Kin Tjong [2014] SGHC 79.

The AR continued hearing BC 173/2013 and gave her decision on 24 June 2014. TCMGP and Mr Wibawa were both dissatisfied with the taxation order. They filed Summons No 3317 of 2014 (“SUM 3317”) and Summons No 3318 of 2014 (“SUM 3318”) respectively to apply for a review of the order. As OS 204 involved the same parties and had overlapping issues with BC 173/2013, all three matters were eventually fixed together before me. The three matters are: SUM 3317, in which TCMGP seeks a review of the AR’s taxation order in BC 173/2013 on the grounds that the costs awarded are too low. SUM 3318, in which Mr Wibawa similarly seeks a review of the AR’s taxation order in BC 173/2013 but on the grounds that the costs are too high; OS 204, in which Mr Wibawa prays for a declaration that the warrant to act is null and void, and for a declaration that all costs due and payable to TCMGP and Mr Singh, have been paid.

There was a fourth matter before me, namely, Summons No 5186 of 2014 (“SUM 5186”), which concerns another set of client and former solicitors: TCMGP and M/s Veritas Law Corporation (“VLC”). For the initial proceedings in OS 204, TCMGP was represented by VLC, which was Mr Singh’s firm at that time, with Mr Singh acting as its counsel in court. VLC discharged itself from acting in OS 204 in August 2014. TCMGP and VLC were not able to agree on how much legal fees VLC should be paid, and eventually a bill of costs for taxation was filed on 4 September 2014. This is Bill of Costs 173 of 2014 (“BC 173/2014”), which is not to be mistaken for the other bill of costs, BC 173/2013, which is also before me. In SUM 5186, TCMGP seeks a review of the AR’s taxation order in BC 173/2014 on the ground that the costs are too high. Given that SUM 5168 is not directly connected with the other matters, I address it after giving my grounds on the other matters.

OS 204

Although OS 204 is an originating summons and not a writ, Lee Seiu Kin J ordered on 30 June 2014 that cross-examination be carried out. This was necessary because the case involved many factual disputes, as I had already pointed out in my earlier judgment in RA 94. The cross-examination was carried out before me.

On the evidence before me, I am not satisfied that Mr Wibawa has proved on the balance of probabilities that there was an oral agreement as alleged. The warrant to act signed by Mr Wibawa is a written agreement that contains clear terms. Mr Wibawa may not be very proficient in English, but the evidence shows that he is not someone who cannot understand or is completely unfamiliar with the language. I am satisfied that he understood the terms of the warrant to act when he signed it. Notwithstanding this, Mr Wibawa might still succeed had he been able to prove, on the balance of probabilities, that it was orally agreed that he pay Mr Singh $5,000, which was later increased to $10,000, every month and that the terms in the warrant to act did not apply to him but was only meant to be a basis for them to claim party and party costs from the defendants in Suit 650 if Mr Wibawa succeeded in his claim.

The evidence from Mr Wibawa to support his claim of the existence of the oral agreement is vague. Even from his affidavit filed on 6 March 2014, it is unclear when or where the alleged oral agreement was made or what its terms were exactly. According to him, Mr Singh told him during their first meeting in July 2011 that “he intended to help [Mr Wibawa who] was to raise whatever funds [he] could”. The day after this meeting, Mr Singh asked him to raise a sum of $5,000 to be paid monthly to him, but he did not answer. Thereafter, he signed the warrant to act which contained the charging structure of TCMGP and Mr Singh. Following that, on 8 February 2012, the terms of the oral agreement was altered and he was to pay $10,000 a month instead of $5,000. He deposed that they also agreed on that day that the other terms of the agreement “was still” that if he wins the case, Mr Singh would charge the legal costs against the trustees but if he loses, he need not pay any more legal fees apart from the monthly sums that they had agreed on. Yet in the earlier sections in the affidavit, there was no mention of these “other terms”.

Mr Wibawa’s case in OS 204 is also contradicted by the affidavits that he had deposed in the proceedings in the Jersey courts for the advancement of $500,000 to pay his legal fees in early 2012. In those affidavits, he deposed that he owed his lawyers large sums of monies, which were charged by hourly rates.

The records of the payment of the legal fees also do not follow the terms of the oral agreement. From August to December 2011, Mr Wibawa paid TCMGP a total sum of $55,000, which does not tally with the agreement under which only $25,000 would have been due. On March 2012, he paid a sum of $75,000 to TCMGP on top of the monthly sum of $10,000. Thus, even the records of payment do not support Mr Wibawa’s case.

The transcripts of audio recording that Mr Wibawa use to support his case is also of little assistance to him. Those transcripts are incomplete and have only been selectively transcribed with many portions of the conversations cut off. They were also not done properly, with many amendments at the side in some sections.

I am not satisfied that there was such an oral agreement. It is unlikely for there to be an oral agreement that covers only the monthly sum due to Mr Singh with no mention of that due to TCMGP. It may be the case that Mr Wibawa had an agreement with Mr Singh or Mr Ling that he could pay $5,000, which...