Tjiang Giok Moy and another v Ang Jimmy Tjun Min ( Citibank NA , non-party) [2024] SGHC 146

Costs

The issue arising here is whether the Claimants, who are a party to OC 56 but who are not the subject of the production order, are entitled to costs for SUM 308 and SUM 1189.

Costs

Having established that the Claimants have standing to be heard in SUM 1189 and SUM 308, I next consider the second issue of the Claimants’ entitlement to costs. Order 21 r 2(1) empowers the court to determine all issues relating to costs, with regard to all relevant circumstances. Order 21 r 3(2) of the ROC 2021 provides that:

Costs

Given that following Xing Rong, the Claimants have locus standi, to make submissions and to appeal against a decision that does not favour its arguments, the Claimants must necessarily be regarded as a party to SUM 308 and SUM 1189 for the purposes of assessing costs under O 21 r 3(2).

Costs

This is supported by Singapore Civil Procedure (Cavinder Bull gen ed) (Sweet & Maxwell, 2024) which states at para 21/3/4 that a respondent who exercises his right to appear and to be heard on an application for leave to appeal against an enforcement notice is normally entitled to his costs where his opposition to the grant of leave is successful. On the same principle, where the Claimants exercise their right to appear and their objections to SUM 308 and SUM 1189 are successful, they would normally be entitled to their costs.

Costs

The Defendant submits that it is the Claimants who should pay the Defendant costs, or that each party should bear its own costs, as the Claimants’ decision to make submissions in SUM 308 and SUM 1189 had protracted the proceedings by requiring the Defendant to review the Claimants’ submissions. This argument is untenable as (a) O 21 r 3(2) of the ROC 2021 requires the court to generally order the costs of proceedings in favour of the successful party, ie, the Claimants; and (b) given that the Claimants have the right to be heard, their submissions are not an unnecessary protraction of the proceedings.

Costs

The Defendant also relies on Xing Rong at [34] where the Court of Appeal ordered parties to bear their own costs, to submit that parties should bear their own costs. However, it is clear from the decision in Xing Rong, that while the defendant succeeded in its appeal against the decision that it lacked locus standi, the Court of Appeal found that even if the defendant had locus standi, it would not have succeeded on the merits in its appeal against the Assistant Registrar’s decision to grant the discovery order. It was on this basis that parties were ordered to bear their own costs. Hence, the costs order in Xing Rong does not assist the Defendant.

Costs

In view of the above, following Xing Rong and O 21 r 3(2) of the ROC 2021, I find that the Claimants, as a successful party in SUM 308 and SUM 1189, would be entitled to costs in their favour.

Costs

Third, the Claimants sought costs on an indemnity basis, rather than the standard basis. An order for costs on the indemnity basis is an exception, rather than a norm: Airtrust (Hong Kong) Ltd v PH Hydraulics & Engineering Pte Ltd [2016] 5 SLR 103 (“Airtrust”) at [17].

Costs

Specifically, under O 21 r 2(2)(f) of the ROC 2021, the court must have regard to the conduct of the parties in fixing costs. In Airtrust at [23], Chan Seng Onn J found there were four broad categories of conduct by a party, which may provide good reason for an order of indemnity costs to be made. These four categories were described by Chan J as follows at [23] of Airtrust:

Costs

Chan J also considered that whether the party’s conduct caused prejudice to the other party, the context and nature of the dispute, and the general penal element to the making of indemnity costs were all relevant factors in determining whether to order indemnity costs: Airtrust at [51]–[53]. In Three Rivers District Council v The Governor and Co of the Bank of England (No 6) [2006] EWHC 816 (Comm) at [25], as cited in Tan Chin Yew Joseph v Saxo Capital Markets Pte Ltd [2013] SGHC 274 (“Tan Chin Yew Joseph”) at [99], Tomlinson J found that the critical requirement before an indemnity order can be made in the successful defendant’s favour is that there must be some conduct or some circumstance which takes the case out of the norm.

Costs

Taking into consideration the relevant factors, I do not consider that the threshold for costs on an indemnity basis has been met, as there is no conduct or circumstance that takes the case out of the norm. The Claimants submit in para 4 of their written submissions on costs that the Defendants should be ordered to pay costs on an indemnity basis as (i) the action was speculative, hypothetical or clearly without basis, or (ii) the action amounted to wasteful or duplicative litigation. I dismissed SUM 1189 because the Defendant had not established the materiality of the entire categories of documents sought, and had not shown that the documents existed or were bankers’ books subject to disclosure. However, I did not consider the Defendant’s conduct in SUM 1189 to cross the high threshold warranting costs on an indemnity basis.

Costs

Part II(B) of Appendix G of the Supreme Court Practice Directions 2021 sets the range of costs (excluding disbursements) for an application for the production of documents at $3,000–$11,000. In consideration of the complexity of the legal case, the conduct of the parties and the stage at which the proceedings were concluded, I consider that an award on the higher end is appropriate. The Defendant attempted to make an eleventh-hour amendment to SUM 308, necessitating an adjournment and wasted costs. The Claimants filed a total of 46 pages of written submissions or affidavits in total for SUM 308 and SUM 1189, and the issues raised of banking secrecy involved established law.

Costs

Therefore, I award costs on a standard basis, in the total amount of $10,000 all in, in the quantum of $4000 for wasted costs in SUM 308 and $4500 for SUM 1189, and in the quantum of $1500 for the costs submissions for SUM 308 and SUM 1189.