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Introduction
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[2022] SGHC(A) 7
Appellate Division of the High Court of Singapore18 Feb 2022Civil Appeal No 26 of 2021
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“We issue this supplemental judgment to our earlier decision in POA Recovery Pte Ltd v Yau Kwok Seng and others and another appeal [2022] SGHC(A) 2 (“the Judgment”). We adopt all abbreviations and terms of reference used in the Judgment. This court recently received information on the total amount of security for costs”
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Introduction
Costs
We issue this supplemental judgment to our earlier decision in POA Recovery Pte Ltd v Yau Kwok Seng and others and another appeal [2022] SGHC(A) 2 (“the Judgment”). We adopt all abbreviations and terms of reference used in the Judgment. This court recently received information on the total amount of security for costs (“SFC”) that POA Recovery had furnished up to the end of trial. This supplemental judgment deals with the information received and [92] and [93] of the Judgment.
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Parties’ clarifications on security for costs
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The Judgment was delivered on 3 February 2022. On 4 February 2022, counsel for the respondents, WongPartnership LLP (“WongPartnership”), wrote a letter to the court to draw the court’s attention to the following:
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(a) POA Recovery had furnished S$500,000, not S$430,000, in SFC, contrary to what was stated in [92] of the Judgment; and
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(b) such SFC had been provided up to the end of trial, and not up to the stage of the exchange of affidavits of evidence-in-chief (“AEICs”).
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To be specific, it appears that SFC provided up to exchange of AEICs was only S$250,000, and that an additional sum of S$250,000 was by agreement furnished by POA Recovery for the period after exchange of AEICs up to the end of trial (“the additional SFC”).
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On 10 February 2022, counsel for POA Recovery, Rajah & Tann Singapore LLP, confirmed WongPartnership’s position as stated above.
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The court’s clarification
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The total quantum of SFC provided by POA Recovery up to the exchange of AEICs was in fact S$250,000 and not S$430,000 as incorrectly stated at [92] of the Judgment. The total sum of S$250,000 was furnished pursuant to orders of court, namely HC/ORC 1005/2019 and HC/ORC 7798/2019.
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The Judge referred to SFC up to exchange of AEICs (see the Judgment at [35]). Like the Judge, this court was not apprised of the additional SFC. Parties did not point to any supporting documentation evidencing that POA Recovery had in fact furnished additional SFC. While POA Recovery did refer to S$500,000 as the total amount of SFC that was furnished (see POA Recovery’s Appellant’s Case at para 178), the documents referred to did not in fact substantiate such a position; nor did POA Recovery provide in the Appellant’s Case a breakdown of how much SFC could be attributed to each stage of proceedings (ie, how much had been furnished up to the exchange of AEICs, and how much had been furnished thereafter, etc).
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As parties have since agreed (via their respective counsel’s letters) that the additional SFC was indeed furnished to cover the period until the end of the trial, this court has taken cognisance of this fact.
Costs
The recent revelation on SFC does not improve the respondents’ argument that POA Recovery’s use of a special purpose vehicle was designed to cost-proof itself. The additional SFC that was provided was not an insignificant sum, and that sum was agreed between the parties, as confirmed by the parties’ solicitors in their respective letters to court. The respondents’ complaint (contained at paras 62 to 66 of their Respondents’ Case in AD 26) that the total amount of SFC that POA Recovery had in fact provided was inadequate is not valid. We continue to agree with Mr Ong that the substantial sum furnished as SFC, totalling S$500,000, militated against the suggestion of cost-proofing (at [92] of Judgment). Furthermore, in so far as the respondents’ argument on cost-proofing is underpinned by the fact that actual SFC fell short of S$1m, that submission is completely undercut by the fact that the additional SFC of a further S$250,000 was an amount that they had agreed to.
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Accordingly, the outcome of the Judgment under the sub-heading of “Champerty and maintenance” (ie, Judgment at [84]–[100]) remains despite our acknowledgment of the position on SFC recently raised by parties.
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