VMax Marine Pte Ltd v Singapore Salvage Engineers Pte Ltd and another appeal [2024] SGHC 208

Costs

After oral judgment was delivered on the merits and costs in HC/DCA 40/2023 (“DCA 40”), the appellant, VMax Marine Pte Ltd (“VMax”), wrote to Court to ask that the costs order for the trial below be varied. This raises three issues. First, whether this Court is functus officio. Second, even if it is not, whether VMax is disentitled from raising an appeal against the costs order below, because it did not file a notice of appeal for this and did not raise this in its submissions, before the Court ruled on the merits and costs of DCA 40. Third, if VMax is not disentitled, whether the Court should exercise its discretion to vary the costs order below.

Costs

At the end of the hearing on 9 July 2024, I dismissed DCA 41 but allowed DCA 40 in part. Parties were ordered to bear their own costs for the appeals, on an overall basis.

Costs

Two days after the 9 July hearing, on 11 July 2024, VMax wrote to the Court, to say that the costs in DC 779 should be considered afresh given its partial success in DCA 40 (“VMax 11 July”). This was the first time that VMax indicated its intention to appeal against the DJ’s costs order (“DJ’s Costs Order”). VMax did not indicate in its Notice of Appeal for DCA 40 that it intended to appeal against the DJ’s Costs Order. Neither did it indicate, in its written or oral submissions for DCA 40, that it intended to do so. The order of court for DCA 40 had yet to be extracted at this point.

Costs

VMax submits that this Court has the power to receive and consider its costs appeal, even though this was not reflected in the DCA 40 Notice of Appeal . First, the Notice of Appeal was filed before the DJ’s Costs Order was issued. Second, VMax’s intention to appeal against costs was contingent on the success of DCA 40. Any costs appeal thus could not have been made before the decision in DCA 40 was rendered. Where a costs decision is rendered after a notice of appeal is filed, and the costs appeal rests on the outcome of the substantive appeal, a party need not file an additional notice of appeal in respect of the costs decision or amend the original notice of appeal to reflect the costs appeal; The “Luna” and another appeal [2021] 2 SLR 1054 (CA) (“The “Luna””) at [104(a)], Qilin World Capital Ltd v CPIT Investments Ltd and another appeal [2019] 1 SLR 1 (CA(I)) (“Qilin (Costs)”) at [9], Beyonics Asia Pacific Ltd and others v Goh Chan Peng and another [2020] 5 SLR 235 (HC(I)) (“Beyonics”) at [28]–[30].

Costs

VMax further submits that it was not obligated to inform the Court, or SSE, of its potential costs appeal . Instead, this right of appeal would arise automatically upon the appellate court deciding differently from the trial judge below. VMax did not submit on the appeal against the DJ’s Costs Order at the 9 July hearing, but this was merely an oversight, “not so egregious that it should lead to VMax being denied an opportunity to be heard”. VMax’s late-stage costs appeal would neither prejudice SSE nor result in an unnecessary waste of judicial resources.

Costs

In arriving at the costs order, the DJ took the sum of $44,800 as the starting point. Given that SSE had prevailed substantially in DC 779, 65% of this amount was awarded to SSE for a total of $29,120. A further $2,000 was awarded to SSE for the four interlocutory applications in DC 779. In total, VMax was to pay SSE costs of $31,120 plus GST .

Costs

VMax argues that it is now “more successful in its claims than SSE by a factor of 10%”, after its appeal in DCA 40 was partially allowed. VMax is now awarded 38% of the total quantum sought in DC 779, while SSE has only recovered 28% of the value of its counterclaim. VMax thus seeks to vary the DJ’s Costs Order, in the following manner : (a) VMax seeks repayment of the $32,434.60 originally paid to SSE for DC 779; (b) VMax seeks fixed costs awarded in its favour, in the sum of $16,000 (calculated by taking $44,800 divided by 28%, multiplied by 10%); and (c) VMax seeks payment of $666.67 for the four interlocutory applications (calculated by dividing the lump sum of $2,000 by a factor of three).

Costs

SSE submits that VMax was not entitled to raise the costs appeal. VMax failed to identify the ground or provision that it was relying on in making its costs appeal. This was especially since the appellate court had already rendered judgment on both the merits and costs . As the costs appeal was not in the nature of further arguments, VMax cannot rely on O. 56, r. 2 of the Rules Of Court 2014 (2014 Rev Ed) (“ROC 2014”). VMax also cannot rely on O. 20, r. 11 ROC 2014, which allows the court to correct clerical mistakes or errors arising from accidental slips or omissions .

Costs

The cases raised by VMax, to say that an appellate court will vary the original costs order in the event of a successful appeal, can be distinguished. Both the appellate court and the responding party in those cases were made aware of a potential costs appeal before a ruling was made on the merits and on costs. At the 9 July hearing, VMax confirmed that it had no further arguments to make before the Court rose for the day. VMax 11 July was the first instance at which the costs appeal was raised. The DJ’s Costs Order was issued seven months before this hearing. VMax had sufficient time to consider an appeal. It should have addressed this at the 9 July hearing but did not .

Costs

Following from the above, this Court would be rendered functus officio with respect to the merits and costs of DCA 40, at the point where the court order on DCA 40 is passed and sealed. This has not been done. Hence, this Court is not functus officio as to the merits and costs of DCA 40. In addition, what VMax seeks is not an amendment of the orders made at the 9 July hearing, but an order that is consequential to such orders. This Court is also in this respect, not functus officio.

Costs

I turn to the second issue, which is whether VMax is disentitled from raising an appeal against the costs order below, because it did not file a notice of appeal for this and did not raise this in its written or oral submissions before the Court ruled on the costs of DCA 40.

Costs

Parties accept that where a costs decision is rendered after a notice of appeal is filed, and where the costs appeal rests on the outcome of the substantive appeal, a party need not file an additional notice of appeal in respect of the costs decision or amend the original notice of appeal to reflect the costs appeal. This is established by The “Luna” at [104(a)], Qilin (Costs) at [9], and Beyonics at [28]–[30].

Costs

However, there is a material factual distinction between this case and these authorities, as well as Ser Kim Koi v GTMS Construction Pte Ltd and others [2021] 1 SLR 1319 (HC) (“Ser Kim Koi”), which VMax also cited. In all of these authorities, the appellant had indicated that it would be appealing against the costs order below, prior to the disposition of the appeal as a whole. More specifically, in all of them, the appellant had informed the court that the costs order below would be challenged, prior to the appellate court ruling on the costs of the appeal.

Costs

SSE submits that since VMax could not identify any provision which specifically enabled it to raise arguments against the costs order below in these circumstances, VMax is disentitled to put forward an appeal against the DJ’s Costs Order.

Costs

However, I am cognisant that it is well established that a court has “inherent jurisdiction to recall [its] decision and to hear further arguments” so long as the order of court has not been perfected; Thomson Plaza (Pte) Ltd v Liquidators of Yaohan Department Store Singapore Pte Ltd (in liquidation) [2001] 2 SLR(R) 246 (CA) (“Thomson Plaza”) (at [6]), Naseer Ahmad Akhtar v Suresh Agarwal and another [2015] 5 SLR 1032 (HC) (“Naseer”) (at [101]). Given that such inherent jurisdiction extends to a recall of a court’s decision, it should follow that the Court also retains the inherent jurisdiction to hear a matter consequential to its decision in the main appeal, which it had previously not heard. This includes the inherent jurisdiction to hear VMax’s appeal against the DJ’s Costs Order.

Costs

Even though this Court retains the inherent jurisdiction to hear and vary VMax’s appeal against the DJ’s Costs Order, the question still arises as to whether this Court should exercise its discretion to do so. This is the third issue.

Costs

In Naseer, the court exercised its discretion to hear the defendants’ application for a stay of execution. This application was first made orally at the end of a hearing. The court dismissed the oral application on the ground that the application was premature and unsubstantiated. A formal application was filed with a supporting affidavit, shortly after the hearing. The court exercised its jurisdiction to hear the defendant’s application. Given the short time between the oral and formal application, the court found that there was no prejudice to the plaintiff that could not be remedied through a grant of costs (at [95]–[101]).

Costs

In particular, I consider the following principles to be relevant to the exercise of a court’s discretion to hear a matter consequential to its earlier decision, after the conclusion of the hearing. The discretion of the court to do so, is not limited by exceptional circumstances, and the overriding objective is to deal with the case in question justly. To this end, parties should be given the opportunity to address the judge, on whether the court’s discretion should be exercised. With these principles in mind, I consider whether the court’s discretion should be exercised to vary the DJ’s Costs Order.

Costs

In this case, what could be said in VMax’s favour is that it raised this fairly soon after DCA 40 was ruled on, around 2 days later. Neither had SSE acted to its detriment, because of VMax’s lateness in this. While SSE submits that it was prejudiced because VMax’s conduct by way of VMax 11 July had extended the timelines for appeal against DCA 40, judgment on the merits and costs of DCA 40 had been concluded on 9 July 2024 and the timeline for appeal would have run from that date. VMax confirmed that this was also its understanding and that there would be no prejudice to SSE in this respect.

Costs

This does not mean, however, that VMax’s conduct is to be condoned. VMax could only say that its late-stage costs appeal was an oversight. This is not a satisfactory explanation. Given the limited judicial resources that are available, it behoves counsels as officers of the court, to raise such issues prior to the court’s disposal of an appeal as a whole, and not after. There was really no excuse for VMax not to have raised its appeal against the DJ’s Costs Order much earlier.

Costs

Importantly, VMax has not shown that this Court’s discretion should be exercised for the overriding objective of justice. VMax seeks to vary the DJ’s Costs Order, on the basis that the final quantum awarded to VMax, after its appeal in DCA 40 was partially allowed, is now relatively higher than the quantum awarded to SSE. However, the DJ’s Costs Order was based on his assessment of the work done and time spent on the relative claims, and not just on the final quantum awarded to each party. VMAX’s claim relating to the Additional Works and Services (“AWS”), which was allowed on appeal, was dealt with in four paragraphs, out of about 93 paragraphs of the DJ’s GD dealing with VMax’s claim. I also find from the record of the proceedings for DC 779, that the work done and time spent on the AWS claim is low relative to VMAX’s other claims. The amount devoted in the GD to the AWS claim could be said to be a fair reflection of the relative work involved. At the hearing, VMax accepted that work done in relation to the AWS claim was less than that for the rest of its claims. The time spent and work done on the AWS claim is certainly not commensurate with the quantum that VMax now seeks to vary in the DJ’s Costs Order. Even in DCA 40, I considered it fair to award costs to SSE even though the appeal by VMax was partially allowed, as SSE had substantially succeeded in DCA 40.

Costs

In these circumstances, I do not find that there is injustice, from leaving the DJ’s Costs Order untouched. I therefore decline to exercise the Court’s discretion to vary the DJ’s Costs Order.