DVA and another v DVC

[3] The background to OA 8 and our reasons for dismissing SUM 25 are set out in the SUM 25 Judgment.

(a) The starting point is an inquiry into the costs in fact incurred by the successful party, to the extent that such costs are “reasonable” (Senda at [52] and [100(a)]).

(b) The legal burden is on the successful party to establish that the claimed costs are “reasonable costs”. The successful party must provide information to show how the claimed costs had been incurred so that the unsuccessful party and the court can assess whether they are reasonable. This will typically include a breakdown of the claimed costs, including the number of hours, the lawyers deployed and their hourly rates, and some explanation as to the work for which those hours were incurred (Senda at [72]–[73] and [100(c)]).

(c) Upon the successful party providing a sufficient breakdown of its claimed costs, the evidential burden shifts to the unsuccessful party to show that the claimed costs are not reasonable. In this regard, the best evidence that the unsuccessful party can adduce will often be evidence of its own incurred costs (Senda at [75] and [100(d)]).

(d) In assessing whether the claimed costs are reasonable, the court considers both whether the costs were reasonably incurred and whether the overall quantum of costs is reasonable. The former focuses on the manner in which the costs were incurred (eg, the conduct of the parties), while the latter focuses on the specific features of the litigation (eg, the complexity of the issues). These considerations are captured in the non-exhaustive list of factors set out in O 22 r 3(2) of the SICC Rules (Senda at [54]–[57]).

[10] The work done in the present case was not minimal, having regard to the complexity of the issues raised in SUM 25. The issues involved some nuance and were not easily resolved. While not all of the factors raised were ultimately found to be relevant or determinative, a number of them required detailed consideration by this court, such as the place of performance of the Platform User Agreement (as defined at [13(a)] of the SUM 25 Judgment) and the place of the non-contractual claims. These connecting factors had to be weighed against the parties’ pleaded cases and the various competing causes of action advanced on both sides.

[11] This is evident from our reasoning in the SUM 25 Judgment. We first began by establishing the significance of the Platform User Agreement to the overall action. Its significance was not confined to the contractual claims, but extended to the resolution of the competing proprietary claims to the disputed cryptocurrency assets, and in particular, the Defendant’s counterclaim (SUM 25 Judgment at [35]–[37]). It was on this basis that we considered the place of performance of the first claimant’s obligations under the Platform User Agreement to give rise to a substantial connection between the action and Singapore (SUM 25 Judgment at [44]–[46]). The fact that the first claimant was the contracting counterparty was not, on its own, sufficient, given the way in which such digital asset trading platforms typically operated and structured their agreements with their customers (SUM 25 Judgment at [47]–[49]).

[15] Teare IJ also noted that the apportionment of work between the lawyers was sensible and reasonable, with most of the hours incurred by more junior members of the team (DWJ v DWK at [21]). The breakdown provided by the Claimants similarly reflects a sensible apportionment of work.

[18] However, we consider that some reduction to the overall figure should be made to account for the overlap between the work of the associates, as well as between the directors. This is especially so in relation to the consideration of the Defendant’s written submissions and the drafting of the Claimants’ reply written submissions. Given that these reply submissions introduced no new points and on their face required little or no additional research, the overall increase in billable hours incurred at that stage is difficult to justify, when account is taken of the work already done in relation to the drafting of the Claimants’ first set of written submissions.

[19] A further reduction from the Claimants’ overall figure should be made to reflect that a number of factors pursued by them had little, if any, bearing on the outcome of the application. Of course, the Claimants should not be faulted for taking a comprehensive approach in contesting SUM 25. However, some of the factors raised clearly gave rise to little connection between OA 8 and Singapore. For example:

(a) The Claimants pointed to the Defendant’s position as a director and shareholder of a company incorporated in Singapore. However, they themselves acknowledged that the company had only a nominal paid up share capital. They were unable to identify any significant assets held by this company, nor were they able to point to any evidence linking it to the relevant transfers that form the subject matter of the present dispute. This factor plainly did not give rise to any real connection between the action and Singapore (SUM 25 Judgment at [51]).

(b) The Claimants also pointed to the Defendant’s pursuit of pre-action discovery proceedings in Singapore. As we observed (SUM 25 Judgment at [52]), this was the logical consequence of the contractual arrangements that were unilaterally imposed by the Claimants on the Defendant, and it was therefore not a factor capable of giving rise to a substantial connection with Singapore.