DKB v DKC [2025] SGHC(I) 21

Costs

This judgment deals with the question of the costs of the Defendant’s application to stay the enforcement of an arbitral award (HC/SUM 1177/2024, or the “Stay Application”) in SIC/OA 10/2024, along with the costs of various other related applications, which I set out in greater detail below. This judgment should be read in conjunction with my grounds of decision of 16 April 2025 concerning the Stay Application (DKB v DKC [2025] SGHC(I) 11) and my grounds of decision of 2 May 2025 (DKB v DKC [2025] SGHC(I) 14) concerning SIC/SUM 17/2025 (“SUM 17”, or the “Variation Application”).

Costs

The Defendant did not comply with these orders. Instead, on 6 March 2025, it made the Variation Application, seeking an extension of the deadline to commence the stipulated arbitration mentioned in [6(a)] above. Around the same time, the Claimant applied in SIC/SUM 18/2025 (“SUM 18”) to lift the stay. On 1 April 2025 I ordered that the time for compliance with Order 2(a) of the orders made by me on 19 February 2025 (see [6(a)] above) be varied by substituting the words “by 12 April 2025” for the words “within 10 days of the making of these orders”, while ordering that SUM 18 be stood over until the conclusion of the contemplated arbitration. I ordered the Defendant to pay the costs of the Variation Application. On 2 May 2025 I published my reasons for making the orders in the Variation Application (see DKB v DKC [2025] SGHC(I) 14).

Costs

Once again, the Defendant failed to commence arbitration before the new deadline of 12 April 2025. On 13 May 2025, I made orders in respect of SUM 18 lifting the stay of proceedings. I ordered the Defendant to pay the Claimant’s costs of SUM 18. At this hearing, I also asked the parties for written submissions setting out their positions on their entitlement to costs regarding all other outstanding summonses in relation to the stay, and the appropriate quantum of all costs which should be ordered.

Costs

The Defendant’s primary submission is that as it was the successful party in the Stay Application, it should have its costs, with the result that costs for SUM 25 and SUM 51 also ought to be awarded to it. It refers to O 22 r 2(1) of the SICC Rules which provides that costs are at the discretion of the court and the court has power to determine all issues relating to the costs of the proceedings including by whom and to what extent the costs should be paid.

Costs

The Defendant, referring to O 22 r 3(1) of the SICC Rules, states that the starting point is that the successful party is entitled to its costs. It submits that the following principles can be derived from the authorities including Tullio Planeta v Maoro Andrea G [1994] 2 SLR(R) 501, Raffles Town Club Pte Ltd v Lim Eng Hock Peter and others (Tung Yu-Lien Margaret and others, third parties [2011] 1 SLR 582 and Low Leong Meng v Koh Poh Seng [2012] 1 SLR 1076:

Costs

The Defendant submits that the court, in exercising its discretion, is entitled to take into account the parties’ conduct before and during the hearing. It submits that this is consistent with O 22 r 3(2)(b) of the SICC Rules which states that for the purposes of determining the reasonableness of the quantum of costs, the court can take into account the parties’ conduct before, as well as during, the application or proceeding.

Costs

The Defendant submits that its failure to comply with the conditions imposed by the orders is a not a relevant factor in determining the entitlement to costs or its quantum. It submits that the relevant principle is that the court is entitled to take into account the conduct of the parties before and during but not after the hearing. It justifies this on the basis that the assessment concerns the manner in which the proceedings in question were prosecuted and conducted which logically terminates at the point of final hearing. It submits that what happens after is properly the subject of the usual mechanisms aimed at ensuring compliance with the court’s orders. It submits that was recognised by the costs orders in SUM 17 and SUM 18.

Costs

The Defendant advances an alternative position to its primary submission; however, its alternative position shifted in the course of its written submissions. At the outset, the Defendant’s alternative position was that if it were not considered to be the successful party in the Stay Application, the Claimant ought not to be awarded its costs of the application. Later in its written submissions, however, it contends that if it were not the successful party, the Claimant should not be entitled to its costs but should instead be ordered to pay the Defendant’s costs for the Stay Application, SUM 25 and SUM 51.

Costs

In that context, it submits that having regard to the principles laid down by the Court of Appeal in Tjong Very Sumito and others v Antig Investments Pte Ltd [2009] 4 SLR(R) 732, the Claimant’s contention that the Defendant was inarguably in breach of the Settlement Deed and that there was therefore no dispute referable to arbitration, was unreasonably pursued by the Claimant. It submits that the Claimant’s insistence in maintaining that unreasonable approach manifested itself in its applications in SUM 25, SUM 46 and SUM 51, significantly increasing the costs of the proceedings. In particular, the Defendant was forced to incur costs in opposing the three summonses and engaging an English law expert.

Costs

As for quantum, the Defendant seeks pre-transfer costs for the Stay Application of $23,000 and post-transfer costs of $220,000 for the Stay Application and SUMs 25, 46 and 51. It also seeks disbursements for all the applications amounting to $36,974.22. For SUM 17 and SUM 18, it submits that it should pay costs of $20,000 all-in to the Claimant.

Costs

In its written submissions, the Claimant contends that whilst costs would as a general rule follow the event, it is trite that the court retains a discretion to depart from the general rule if justified by the circumstances. It submits that the rules governing costs are very much underpinned by considerations of fairness and common sense and the costs orders made must reflect the overall justice of the case.

Costs

In these circumstances, the Claimant submits the Defendant should pay its costs of the Stay Application; alternatively, no order as to costs should be made in respect of the Stay Application. For SUM 25 and SUM 51, the Claimant argues that the Defendant should bear its costs as it succeeded in those applications. As for quantum, the Claimant claims:

Costs

I accept the Defendant’s submission that as a general rule the successful party is entitled to recover its costs provided they are reasonable and proportionate to the issues involved.

Costs

I also accept that as a general rule the fact that the successful party has failed on a particular issue does not deprive it of its costs, at least when the issue had not caused a significant increase in the cost or length of the proceedings.

Costs

However, these matters are subject to the general discretion of the court in awarding costs. As was pointed out by the Court of Appeal in BCBC Singapore Pte Ltd and another v PT Bayan Resources TBK and another [2024] 1 SLR 1 at [25] the rules governing costs are very much underpinned by considerations of justice and common sense, and any costs orders must not only reflect the overall justice of the case, but also be workable and not leave the parties to indulge in expensive satellite costs litigation.

Costs

The Claimant essentially submitted that the Stay Application was not brought bona fide but for an improper collateral purpose. I am not prepared to accept that submission. Had I been prepared to do so, I would have had no hesitation in awarding the Claimant its costs.

Costs

In these circumstances, where the Defendant sought a stay based on a contractual right which it had no intention of enforcing, the interests of fairness and justice require that no order should be made in its favour for the costs of the Stay Application.

Costs

Equally, it does not seem to me appropriate that the Claimant should have its costs. The Claimant’s primary position was that a stay should not be granted as the Defendant had no arguable defence to its claim. That contention being rejected absent any finding of improper or collateral purpose, it seems to me just and fair that the Claimant should bear its own costs.

Costs

In the circumstances, I would not make any order for costs on the Stay Application.

Costs

These interlocutory applications were linked to the Stay Application. Although the Claimant was successful in these applications, that success had no bearing on the outcome of the proceedings. In the circumstances, there should be no order as to costs for these applications.

Costs

I have already ordered that the Claimant pay the Defendant’s costs of this application (DKB v DKC [2025] 3 SLR 114 at [32]). In a schedule attached to its submissions, the Defendant assessed the costs of this application at $25,820. The schedule sets out the work done, the amount of time spent, and the rates charged by each of those persons involved in the application. Having considered these matters I am of the view that the amount claimed is reasonable and proportionate to the issues involved. I would order the Claimant pay the Defendant’s costs of this application in an amount of $25,820 (all-in).

Costs

I have ordered that the Defendant pay the Claimant’s costs of these applications (see DKB v DKC [2025] SGHC(I) 14 at [65] for SUM 17). In respect of SUM 17, the Claimant claims an amount of $68,375 and in respect of SUM 18 it claims $28,375. The total amount claimed in respect of these two interrelated applications is $96,750. The Claimant also claims disbursements of $706.15 in respect of SUM 17 and $578.79 in respect of SUM 18, for a total amount of $1,284.94.

Costs

The Claimant has set out the work done in respect of these applications, the time spent and the charge-out rate of each of those persons who carried it out. I have considered these matters but I am of the view that the total amount claimed is more than what is reasonable and proportionate to the issues involved. In all the circumstances, I would order the Defendant to pay the Claimant’s costs of SUM 17 and SUM 18 assessed in the sum of $70,000. I would also order the Defendant to pay the Claimant’s disbursements in respect of these summonses in an amount of $1,284.94.

Costs

As each party has had partial success in these costs proceedings, I would make no order in respect of these costs.