Nim Minimaart (a firm) v Management Corporation Strata Title Plan No 1079 and others

Judith Prakash J:

[2] There is a long history to this litigation. Certain salient features must be highlighted in order to understand the nature of the arguments before me. The appellant, Nim Minimaart, which is a firm owned by one Mr Sambasivam Kunju, was the plaintiff in District Court Suit No 1263 of 2008 (“the DC Suit”). At all material times, Mr Sambasivam Kunju appeared in person. The defendants in the DC Suit (and the respondents in the appeal before me) are the management corporation (“the first defendant”) and the members of the management council of a strata title development which had rented certain premises in the development to the plaintiff for the purpose of operating the business of a mini-supermarket.

[3] The plaintiff brought the DC Suit in order to obtain specific performance of a particular clause in the licence agreement governing the plaintiff’s use of the premises. The plaintiff’s claim was that he was entitled to be granted an extension of the licence for a period of one year from January 2008 to January 2009. The defendants resisted the claim and the DC Suit came on for trial between 11and 13 March 2009 (“the first trial”). On the last day of the first trial, a consent order (purportedly following from a settlement reached between the parties) was entered. The first trial, accordingly, did not continue.

[7] The plaintiff was not satisfied with the taxation. He applied for a review of the taxing master’s award and the review was heard on 28 December 2011. The grounds on which the plaintiff wanted the award reviewed were the following:

(a) The defendants had been wrongly awarded costs for the first trial in respect of which each party was to bear its own costs;

(b) The defendants had failed to provide sufficient particulars in the bill to support their claim under Section 1 that 280 hours of work had been done;

(c) There were numerous mistakes in the Bill and the defendants had failed to pay $500 in costs awarded to the plaintiff for the amendment of the Bill;

(d) The defendants wrongly claimed disbursements for the first trial and also should not have been allowed $8,202 for using a transcription service;

(e) Moreover, claims for oath fees were wrongly calculated while sums allowed for transport and parking, facsimile, postage and incidentals totalling $750 were excessive; and

(f) The defendants had caused numerous delays (totalling 105 days) in the hearing of the DC Suit.

[9] On 18 January 2012, the plaintiff filed the present appeal against the DJ’s decision. He wants that decision set aside and for there to be a review of the taxing master’s award on the Bill.

[10] The appeal falls under O 55C of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) as it is against the decision of a district judge in chambers. Rule 1 of O 55C provides that appeals shall lie to a judge of the High Court in chambers from any order or decision of a district judge in chambers. Under s 22 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed), all appeals to the High Court in the exercise of its appellate civil jurisdiction are by way of re-hearing but this does not change the essential nature of the case which is an appeal and not a review.

[11] It is settled law under the present Rules of Court that when the decision of a taxing master goes up for a review by a more senior judicial officer, the reviewing officer hears the matter de novo and is not bound in any way by the exercise of discretion by the taxing master. He is entitled to substitute his own discretion for that of the taxing master and to change the quantum awarded to such an extent as appears correct to him, although he should give due weight to the taxing master’s decision on quantum: see Tan Boon Hai v Lee Ah Fong and others [2001] 3 SLR(R) 693.

[12] The position is different when there is an appeal against the decision made on review. When an appeal is lodged against a judicial decision that has been made in the exercise of a judicial officer’s discretion, in order to overrule that exercise of discretion it must be shown that the judicial officer had erred in principle or had reached a conclusion that is plainly wrong: see Golden Shore Transportation Pte Ltd v UCO Bank and another appeal [2004] 1 SLR(R) 6 at [44]. In the earlier Court of Appeal case of Lian Soon Construction Pte Ltd v Guan Qian Realty Pte Ltd [1999] 1 SLR(R) 1053, the court observed at [34]:

[13] Therefore in deciding this appeal from the DJ’s decision on the review of the taxation award, insofar as that decision was an exercise of discretion, I am not at liberty to interfere with it unless there was a mistake of principle or the DJ took account of irrelevant matters or disregarded relevant matters. Insofar as the decision was based on legal principles, it will not be reversed unless the DJ applied the wrong principles. The plaintiff in his position as appellant before me has, therefore, a heavier burden to discharge than he had during the review.

[14] The arguments made by the plaintiff on appeal were as follows:

(a) The Bill was in the wrong format and did not set out information pertaining to attendance at interlocutory hearings, discovery and costs claimed as shown in the sample Bill of Costs attached to the Practice Directions.

(b) The defendants were not entitled to claim costs for work done for the first trial.

(c) The defendants behaved unreasonably or improperly by failing to enforce an injunction against the plaintiff until three and a half years after it was applied for.

(d) The defendants did not particularise their claim for 280 hours of work done in sufficient detail.

(e) The defendants’ previous solicitor had failed to attend a hearing and thereafter had not appeared. The defendants’ claim for Section 2 costs was shoddy, in the incorrect format, and had insufficient particulars.

(f) The defendants had wasted a total of 105 days by applying for adjournments and delaying the matter.

(g) The plaintiff should not be liable to pay for the use of transcription services.

It can be seen that many of these arguments were a rehash of what had been presented to the DJ upon the review. Also, while some of the arguments called for an exercise of discretion first by the Deputy Registrar and then by the DJ, other arguments dealt with matters of principle. I will deal with the appellant’s arguments in turn.

(a) The settlement recorded after the first trial did not award costs to either party.

(b) In his judgment setting aside the consent order, the Judge had stated that each party was “to bear their costs for this appeal and costs below”. The plaintiff interpreted this as meaning that each party had to bear its own costs in respect of the three hearing days.

[23] The plaintiff complained that although the defendants’ solicitors claimed to have spent 280 hours working on this matter, they had not given sufficient details of the work done. I do not agree. The solicitors did not have to say how each of the 280 hours was spent. This is not a requirement of the Practice Directions or the Rules of Court. What they had to do was to give a sufficient description of the work done throughout the course of the case and of the nature of the issues involved so as to justify the assertion that 280 hours were spent.

[24] In this regard, the Bill set out sufficient details of the pleadings filed, the nature of the case, the interlocutory applications, the pre-trial conferences, the discovery process and the number of documents disclosed and reviewed and also the preparation for trial and the attendance at trial. As I have stated, the second trial took eight days. The plaintiff called two witnesses while the defendants called ten. The bundles of documents filed by the parties amounted to some 1,348 pages and between them, the parties filed about 90 pages of submissions and relied on 23 authorities. Both a claim and a counterclaim had to be considered. The plaintiff had claimed in excess of $110,000 in damages while the first defendant wanted an injunction. In the light of all this, to claim that 280 hours were spent on the matter is not an excessive claim.

[27] On the disbursements in Section 3 it is my view that two items incurred in relation to the first trial should not have been included in the Bill. These are as follows:

(a) The amount of $11.20 spent on 10 March 2009 in respect of a Request for Subpoena; and

(b) The amount of $34.40 spent on 11 March 2009 in respect of a Subpoena to Testify.

Both these items were incurred strictly for the first trial. Since no order was made regarding the costs of the first trial, they were not recoverable. They were not disbursements on which GST is chargeable. The disbursements recoverable must therefore be reduced by the sum of $45.60.