Yeo Boong Hua and others v Turf Club Auto Emporium Pte Ltd and others

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 15 March 2019
• Neutral Citation: [2019] SGHC 73
• Court: High Court (Singapore)
• Docket Number: Suit No 27 of 2009
• Year: 2019
• Published date: 20 March 2019
• Hearing Date: 24 December 2018,30 November 2018
• Plaintiff Counsel: Adrian Tan, Ong Pei Ching, Joel Goh and Hari Veluri (TSMP Law Corporation)
• Defendant Counsel: Kelvin Poon and Alyssa Leong (Rajah & Tann Singapore LLP),Irving Choh and Melissa Kor (Optimus Chambers LLC),the 8th defendant unrepresented.
• Subject Matter: Civil Procedure,Costs
• Citation: [2019] SGHC 73

Woo Bih Li J: Introduction

This judgment addresses the question of costs in respect of the four hearings mentioned below (“the Four Hearings”): the hearing of the action in Suit No 27 of 2009 before Choo Han Teck J in October 2012 (“the October 2012 Hearing”); the hearing of CA 156 of 2012 being the appeal to the Court of Appeal against the decision of Choo J (“the CA 156/2012 Hearing”); the hearing of the action in Suit No 27 of 2009 before me in 2014 (“the 2014 Trial”); and the hearing of the plaintiffs’ claims based on the torts of conspiracy and inducement of breach of contract before me in 2017 (“the 2017 Torts Hearing”). Unless otherwise stated, the expression “costs” includes disbursements.

The background to this action has been set out in my judgment dated 6 August 2015 and in judgments of the Court of Appeal subsequently. It was also summarised in my supplementary judgment dated 17 October 2017 for the 2017 Torts Hearing.

Liability for costs

The plaintiffs submitted that the following defendants be held jointly and severally liable for whatever costs that may be ordered in favour of the plaintiffs in respect of the Four Hearings: the 2nd defendant, Singapore Agro Agricultural Pte Ltd (“SAA”); the 3rd defendant, Koh Khong Meng (“Koh”); the 5th defendant, Tan Huat Chye (“Tan Senior”); and the 7th defendant, Tan Chee Beng (“Tan CB”).

As the 1st defendant, Turf Club Auto Emporium Pte Ltd, and the 4th defendant, Turf City Pte Ltd, were nominal defendants and as the 8th defendant, Ong Cher Keong (“Ong”) was still an undischarged bankrupt, the plaintiffs did not seek costs against them.

At the time of the 2014 Trial before me: Rajah & Tann Singapore LLP (“R&T”) acted for the 1st to 4th defendants and also for Tan CB; JLC Advisors LLP acted for Tan Senior; and Khor Thiam Beng & Partners acted for Ong.

By the time of the 2017 Torts Hearing: R&T had ceased to act for Tan CB. They continued to act for the 1st to 4th defendants and still do so. JLC Advisors LLP had ceased to act for Tan Senior. Instead, Optimus Chambers LLC (“Optimus”) acted for both Tan CB and Tan Senior and still do so. Ong was unrepresented and did not participate in the hearing.

In R&T’s costs submissions dated 14 December 2018, R&T agreed that SAA, Koh, Tan Senior and Tan CB should bear any costs granted to the plaintiffs jointly and severally. Previously in respect of Summons 4309/2015 (“SUM 4309/2015”), R&T had submitted that there should be no joint and several liability as their clients had run a separate case from that of Tan Senior and Ong.

In Optimus’ submissions dated 14 December 2018, Optimus submitted that costs should not be on a joint and several basis. Optimus submitted that Tan CB should be liable for no more than 20% of the costs granted to the plaintiffs and Tan Senior should be liable for no more than 10% of such costs.

I note that whether or not Tan CB and Tan Senior were parties to the consent order, it was undisputed that SAA was such a party and the court has concluded that SAA did breach the consent order. SAA, being a corporate entity, acted through natural persons. One of these persons was Tan CB. Indeed, Tan CB resisted the plaintiffs’ action just as much as SAA did. As mentioned, he was represented by R&T, who also acted for SAA, at the time of the 2014 Trial, which was the main hearing of the action and spanned 37 days.

Tan Senior also took an active role in the 2014 Trial, as well as hearings before and after that. In Turf Club Auto Emporium Pte Ltd and others v Yeo Boong Hua [2017] SGCA 21 at [179], the Court of Appeal also said that Tan Senior was rightly joined as a defendant in the present action.

I also concluded at the 2017 Torts Hearing that Tan CB, Koh and Tan Senior were liable for conspiracy to injure the plaintiffs by unlawful means, and Tan CB and Tan Senior were also liable for the tort of inducing SAA to breach the consent order. I have not mentioned Ong here as no one is suggesting that he be liable for any costs.

In Turf Club Auto Emporium Pte Ltd and others v Yeo Boong Hua and others and another appeal [2018] SGCA 79 at [31], the Court of Appeal ordered Tan CB, SAA and Koh to pay one set of costs for CA 168/2015 and Tan Senior to pay another separate set of costs for CA 171/2015. This was because Tan Senior had filed a separate and distinct appeal and the plaintiffs had asked for separate costs orders for each appeal. For the costs of the Four Hearings which I have to deal with, I am of the view that Tan Senior’s involvement was inextricably linked and overlapped with those of the other defendants.

In the circumstances, I accept the plaintiffs’ submission that SAA, Koh, Tan Senior and Tan CB are liable for whatever costs are to be granted to the plaintiffs and that their liability for such costs is joint and several. I will henceforth refer to these four parties as “the Four Defendants”.

Certificate for costs for three lawyers for plaintiffs

In the plaintiffs’ submissions on costs dated 14 December 2018, the plaintiffs sought a certificate for costs for three lawyers. Previously, the plaintiffs had filed SUM 4309/2015 on 21 September 2015 for a certificate for costs for more than two lawyers generally in respect of this action. The plaintiffs submitted that the application had not been determined. However, according to my minutes of one of the hearings of that application on 30 November 2015, I had dismissed that application. Accordingly, it is not open to the plaintiffs to seek a certificate for costs for three lawyers again.

In any event, while I agree that the matter was complex, this was because of the long history and the twists and turns of the litigation between the parties. Several factual issues were also raised. However, there was no complex point of law as such until the parties had to address the question of the nature of the reliefs which the plaintiffs were entitled to. This complexity was more evident at the Court of Appeal stage after the 2014 Trial. On 22 November 2018, the Court of Appeal made its decision on costs for two 2015 appeals before it, ie, CA 168/2015 and CA 171/2015, without granting a certificate for costs for three lawyers for the plaintiffs.

For the avoidance of doubt, I will not grant a certificate for costs for three lawyers for the plaintiffs for the Four Hearings.

Indemnity costs

The next question is whether the plaintiffs are entitled to costs on an indemnity basis.

I do not find the conduct of the Four Defendants to be so egregious as to justify such a costs order notwithstanding my criticism of the conduct of some of these defendants. The Court of Appeal also did not grant costs on an indemnity basis for the two 2015 appeals before it. Hence, costs will be decided on a standard basis for the Four Hearings.

Quantum of costs excluding disbursements

I come now to the quantum. For this section, I will consider the quantum for costs of the Four Hearings, excluding disbursements, which will be dealt with in the next section.

The 2014 Trial

I will start off with costs for the 2014 Trial as that was the trial which spanned 37 days. The quantum for that will be the highest of the Four Hearings and may in turn have a bearing on what the quantum of costs for the other three hearings should be.

Based on two lawyers for the plaintiffs and costs on a standard basis, the plaintiffs asked for $1.5m. They pointed out that at the end of the 2014 Trial, R&T had themselves estimated costs to be paid to the plaintiffs, if the plaintiffs were successful, at $1m.

R&T submitted that although that was the estimate they had given then, this estimate should no longer apply for various reasons: the estimate was given before the costs guidelines in Appendix G were issued; the quantum of costs should be proportionate to the judgment sum and the plaintiffs had been granted damages amounting to only $1,338,312.50 by the Court of Appeal; the estimate was based on the assumption that the plaintiffs succeeded in all their claims and they did not succeed in all. Indeed, they had abandoned some of the claims; and the plaintiffs had spent unnecessary time on issues which were not material such as whether there was in existence a Back to Back Arrangement, the question of certain construction costs and the preparation of the accounts of the Joint Venture Companies in question. Also, the plaintiffs wasted two full days cross-examining Ong when they ultimately abandoned their conspiracy claim against him. Had they not pursued a claim against Ong, Ong’s lawyer need not have cross-examined the plaintiffs’ witnesses for six days.

Using Appendix G, R&T submitted that costs for the 2014 Trial would have been $378,000. After taking into account all other factors, R&T submitted that the costs payable (by the Four Defendants) should be $250,000 which is about 66% of $378,000. On the quantum of costs (and disbursements) for the Four Hearings generally, Optimus aligned itself with R&T’s arguments. Hence it will not be necessary for me to refer to Optimus’ arguments going forward.

I note that the 2014 Trial was heard before the Appendix G costs guidelines were issued. In my view, such guidelines may still be considered. However, the fact that R&T had themselves estimated the costs payable to the plaintiffs for the 2014 Trial at $1m should not be ignored.

Even applying Appendix G, R&T’s suggestion of $378,000 was not necessarily correct. R&T had used a daily tariff based on a simple tort or contract case. This is $15,000 a day with a tiered approach as follows:

(a)	1st to 5th day of trial	-	100% of tariff
(b)	6th to 10th day of trial	-	80% of tariff
(c)	11th day onwards	-	60% of tariff

However, for a complex tort or contract case, the daily tariff is $17,000 a day. For complex corporate/company law disputes,...