Ho Soo Fong v Revitech Pte Ltd [2018] SGCA 82

Costs

The applicant, Mr Ho Soo Fong (“Mr Ho”), was a director and 75% shareholder of Ho Pak Kim Realty Pte Ltd (“HPK”). HPK was the plaintiff in an action against the respondent, Revitech Pte Ltd (“Revitech”) in Suit No 36 of 2006 (“S 36/2006”). On 2 August 2010, following the determination of liability in S 36/2006, the court ordered costs to Revitech on its counterclaim. It also ordered that, in the event HPK was unable or unwilling to pay Revitech costs when taxed or agreed, Revitech would be at liberty, after giving due notice to Mr Ho, to make Mr Ho pay such costs personally (“the Costs Order”) on the basis that Mr Ho was the alter ego and the moving force behind HPK.

Costs

On 24 May 2017, Mr Ho filed Originating Summons No 563 of 2017 (“OS 563”) seeking to be added as a party to S 36/2006 and to set aside the Costs Order. OS 563 was heard and dismissed by Lai Siu Chiu SJ (“the Judge”) on 29 January 2018.

Costs

In 2006, HPK commenced S 36/2006 against Revitech over a construction dispute. Revitech filed a counterclaim. Mr Ho was HPK’s representative during the trial and was its main factual witness. The trial was heard in three tranches. On 2 August 2010, after the conclusion of the trial, the Judge ordered costs on a standard basis against HPK on Revitech’s counterclaim. She also made the Costs Order.

Costs

On 30 September 2010, the Court of Appeal heard HPK’s appeal from S 36/2006. The appeal was in the main dismissed although the Court of Appeal directed that the Costs Order be suspended pending the assessment of damages, with liberty to either party to apply after the completion of the assessment of damages.

Costs

Damages were eventually assessed in Revitech’s favour. The suspended Costs Order came up for further consideration before the Court of Appeal on 11 July 2014 (“the 11 July 2014 hearing”). As HPK’s solicitors had been discharged prior to this hearing, Mr Ho represented HPK at the hearing. Mr Ho addressed the Court of Appeal on the merits of the Costs Order. After hearing Mr Ho and Revitech, the Court of Appeal restored the suspended Costs Order.

Costs

The costs in the Costs Order were eventually taxed on 23 August 2016. HPK and Mr Ho filed an application to set aside the taxation and in the alternative, to obtain an extension of time to apply for a review of the taxation. This was dismissed on 3 May 2017.

Costs

On 24 May 2017, Mr Ho filed OS 563 seeking to be added as a party to S 36/2006 and to set aside the Costs Order. While OS 563 was underway, the Attorney-General (the “AG”) applied pursuant to s 74 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) to restrain Mr Ho (and HPK) from continuing proceedings connected with S 36/2006 on the basis that Mr Ho was a vexatious litigant. Mr Ho consented to the AG’s application and a consent order was recorded (“the vexatious litigant order”).

Costs

On the facts of this case, the primary consideration was whether Mr Ho’s intended appeal against OS 563 was so hopeless that granting an extension of time would really be an exercise in futility and a waste of time and costs. In our view, OS 563 had no chance of success.

Costs

Although counsel for Mr Ho raised several issues before us and in OS 563, his main contention was that Mr Ho was not given an opportunity to address the court on 2 August 2010 on the Costs Order before it was made as he was not a party to the proceedings in S 36/2006. In fact, Mr Ho claimed that he had notice of the Costs Order only as late as 23 August 2016 when costs were taxed.

Costs

Mr Ho’s claims could not be correct. He would have been the person instructing HPK’s counsel at the hearing on costs on 2 August 2010 and he did not allege that his then counsel failed to inform him about the Costs Order after it was made by the Judge. Mr Ho was not only present at the 11 July 2014 hearing concerning the Costs Order, he also represented HPK. It is plain to us that Mr Ho was aware of the Costs Order by 11 July 2014 at the latest.

Costs

The documentary evidence on record – including Mr Ho’s own affidavits filed in support of HPK’s subsequent successive applications to challenge the Costs Order – proved this to be so. In his affidavit dated 21 July 2014, Mr Ho detailed exchanges between himself and the Court of Appeal at the 11 July 2014 hearing. At that hearing, Mr Ho addressed the Court of Appeal on why he should not be made personally liable for costs. The suspended Costs Order was explained to Mr Ho and was then restored. On at least three further occasions after 11 July 2014, Mr Ho had the opportunity to ventilate his case on the Costs Order before the Court of Appeal. There could therefore be no doubt that Mr Ho had notice of the Costs Order by 11 July 2014 at the latest and had been heard on the same issue several times. Indeed, many of the grounds raised before us appeared to have similarly been raised before the Court of Appeal on those prior occasions.

Costs

Mr Ho’s application in OS 563 was merely another attempt to re-open the proceedings in S 36/2006 and the Court of Appeal’s decision on the Costs Order. Such matters have long been concluded. In our view, the Judge was therefore entirely justified in dismissing OS 563. Mr Ho’s appeal against the Judge’s dismissal of OS 563 would ultimately be a non-starter. Accordingly, we dismissed his application.

Costs

Mr Ho’s applications were made ex parte, in Revitech’s absence. The court’s attention was not brought to the fact that Mr Ho had had the opportunity to address the Court of Appeal on multiple occasions on the merits of the Costs Order. Mr Ho’s affidavits and submissions before Chan J claimed that he had notice of the Costs Order only on 23 August 2016, which, as shown above, could not be correct. They made no mention of the 11 July 2014 hearing or his three applications thereafter to set aside, stay and vary the Costs Order. Other than a cursory reference to Mr Ho’s affidavit filed in OS 563, which in turn made passing reference to the Court of Appeal’s reinstatement of the Costs Order, none of the materials either directly or indirectly explained that the Court of Appeal had considered and upheld the Costs Order after submissions were made on whether Mr Ho should be made to pay costs personally. Had the full history of the proceedings been brought to the court’s attention, leave to continue might not have been granted as OS 563 and the intended appeal from its dismissal would be frivolous and completely hopeless in merit. In those circumstances, Mr Ho could not rely on the ex parte proceedings as evidence of the merits of his proposed appeal from OS 563.

Costs

For the above reasons we dismissed the present application with costs. After hearing the parties on costs, we ordered Mr Ho to pay Revitech costs fixed at $3,300 inclusive of disbursements, which is the amount that Revitech asked for. We also made the usual consequential orders on the security for costs.