Beyonics Asia Pacific Ltd and others v Goh Chan Peng and another [2020] SGHC(I) 20

Costs

The parties were unable to agree on the appropriate order for costs and by a subsequent judgment, dated 22 July 2020, it was ordered that the Plaintiffs should pay the Defendants’ costs of the Henderson v Henderson Issue and two thirds of their costs of the Substantive Issue (“the Trial Costs Order”).

Costs

An issue has arisen between the parties on the question of whether leave to appeal is needed in order to appeal against the Trial Costs Order in the particular circumstances of this case. In this case, the Plaintiffs have stated that, if the Substantive Appeal is dismissed, they will not challenge the existing order for costs of the trial but would wish to do so in the event that the appeal succeeds wholly or in part.

Costs

The Plaintiffs submit that in those circumstances leave to appeal is not required and that the Court of Appeal, following its decision in the Substantive Appeal, has the power to make such order as to costs as it sees fit both in relation to the costs of the appeal and of the trial. It has this power without the need for a formal separate notice of appeal in relation to costs and hence without the need for leave to appeal being granted by the trial judge pursuant to s 34(2) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) and the Fifth Schedule thereto.

Costs

The Defendants do not agree. They contend that where an order for costs has been made which is a separate order from that on the substantive judgment which has itself been appealed, leave to appeal is required since the costs issue does not arise under the earlier order.

Costs

In consequence, in order to protect themselves should the Defendants’ contentions be correct, the Plaintiffs seek leave to appeal against the Trial Costs Order and, since the application was made out of time, an extension of time in which to file the notice of appeal.

Costs

The underlying facts in Qilin so far as relevant were on all fours with the facts of this case. On 5 March 2018 the trial judge made his decision on the costs of the trial, well after the substantive decision had been given, as the Court of Appeal’s decision on the substantive appeal was given the next day, 6 March 2018 (Qilin World Capital Ltd v CPIT Investments Ltd and another appeal [2018] 2 SLR 1).

Costs

The appeal was allowed in part and the Court of Appeal was then asked to address the question of costs both at trial and on appeal in the light of its judgment.

Costs

The emphasised passage is clear and is directly on point. The Court of Appeal has control over its own proceedings and, once it has reached a conclusion different to that of the trial judge, it has the power to do that which is right in the light of its decision so far as costs are concerned wherever those costs have been incurred.

Costs

The Court of Appeal’s judgment on costs was however reached without the benefit of full submissions from the respondent in Qilin as, by then, the solicitors formerly instructed by the respondent had ceased to act. The Defendants in this case submit that the passage in [9] of Qilin, cited above, was reached per incuriam as the Court of Appeal was not referred to its earlier judgment in Clearlab SG Pte Ltd v Ma Zhi and another [2016] 3 SLR 1264 (“Clearlab”).

Costs

In that case, separate orders were made on the substantive judgment and on a subsequent determination on costs. Two notices of appeal were filed, one against the substantive order and the other against the costs order, but leave to appeal against the costs order was not sought. Further, the appellants resisted a suggestion that the two appeals should be consolidated. As a result, the appeal against the substantive order was heard first and the appeal was dismissed. Thereafter a separate hearing took place on the appeal against the costs order, the contention being that even although the substantive appeal had failed, the trial judge’s order on costs should be reconsidered and amended. The point was taken that such an appeal, separate from the appeal on the substantive order, required leave to appeal.

Costs

Clearlab was thus a very different case to Qilin and the present case in two principle respects. First the costs appeal was not consolidated with the substantive appeal and secondly the costs appeal was not only seeking a different award of costs if the appeal succeeded in whole or in part, it was inviting the Court of Appeal to alter the costs award below even if the appeal failed.

Costs

The costs appeal was thus a standalone appeal (see the emphasised passage in [12] of Clearlab set out above). As such it required a separate notice of appeal and for leave to be given. The Court of Appeal went on to consider what its attitude would have been had the appeals been consolidated and concluded that as a practical matter leave would probably have been given, but once again held that leave would have been required.

Costs

The first question therefore that has to be decided is whether in the present case, where the appellant seeks the Court of Appeal to review the order for costs below if, but only if, the appeal succeeds in whole or in part, a separate notice of appeal is required. If so, then it must follow that leave to appeal is required also. To my mind this is a question that did arise for decision in Qilin and was not canvassed in Clearlab. Accordingly, I hold that this court is bound by the reasoning in Qilin which was not reached per incuriam.

Costs

Qilin is authority for the proposition that where there is a substantive appeal and a notice of appeal is filed before a costs order is made in respect of the trial costs, if the appellant wishes only to challenge the costs order should the appeal succeed in part, no separate notice of appeal is required. The most that may be required is that the notice of appeal against the substantive judgment is amended to make this clear. The Court of Appeal in Qilin did not expressly decide that such an amendment was necessary, contenting itself with holding that it was not necessary on the facts of that case.

Costs

However, the reasoning of the Court of Appeal in the passage in [9] of Qilin, highlighted in [17] above, suggests that it is not. If the Court of Appeal is “entitled and empowered to deal with the costs of the proceedings below” it would seem to follow that an express request that the court exercise that power is an unnecessary requirement.

Costs

They should, in my judgment, not be left in the position where a successful appeal might result in the Court of Appeal holding that it does not have the power to alter the costs award in the court below even if it felt this to be just owing to a failure in serving the necessary documents.

Costs

I therefore propose to grant the Plaintiffs leave to appeal against the judgment on costs in so far as this may be necessary and they can then seek to have that appeal consolidated with the Substantive Appeal.

Costs

On the facts of this case I do not consider that a separate notice of appeal on costs is necessary so that leave to serve one is not required. However, in circumstances where one party contends that it is, the right course is to grant leave to appeal so that the Plaintiffs are protected should my primary conclusion be held to be wrong. I therefore grant leave to appeal out of time.

Costs

So far as costs are concerned, it can fairly be said that the Plaintiffs have made an unnecessary application but equally it can be said that the Defendants have failed in opposing the application for leave to amend. In all the circumstances I consider that each party should bear its own costs of the application. There will therefore be no order as to costs.