BCBC Singapore Pte Ltd and another v PT Bayan Resources Tbk and another

This was the last stage of a dispute that had run for over a decade. BCBC Singapore Pte Ltd (BCBCS) and Binderless Coal Briquetting Company Pty Limited (BCBC) sued PT Bayan Resources TBK (BR) and Bayan International Pte Ltd (BI) in Suit No 1 of 2015, which was later transferred to the Singapore International Commercial Court (SICC). The plaintiffs won most of the liability issues in the first two tranches of trial, but lost in the third tranche on damages, chiefly because BR would have wound up the parties' joint venture company as an unpaid creditor before BCBCS could recover anything (the Winding Up Defence). The plaintiffs ended with $1,000 in nominal damages.

In its costs judgment the SICC treated the defendants as the successful party and awarded them $4,694,633.20 in costs and disbursements. For post-transfer costs it started from the $4,947,753.70 claimed, applied a 10% discount for lack of particularisation and a further 40% discount for the plaintiffs' success on legally significant issues, arriving at $2,671,787. The plaintiffs appealed with permission in Civil Appeal from the Singapore International Commercial Court No 4 of 2023, challenging only the post-transfer costs.

1. Whether the SICC erred in applying a 40% discount instead of an issue-based approach or a larger discount.
2. Whether the plaintiffs could rely on the approach in Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137 when that point had not been raised before the SICC.
3. Whether BCBCS and BCBC should be jointly and severally liable for the defendants' costs.

The court held that the SICC was entitled to prefer a discounting approach over an issue-based one; its judgment did not set a rule excluding issue-based costs whenever there is an overall winner, and the plaintiffs showed no error in its choice. But a 40% discount did not reflect the shape of the litigation. The court allowed the plaintiffs to raise the Beoco point although it was new, as it was a question of principle needing no further evidence and caused no prejudice. The Winding Up Defence was pleaded only on 21 January 2020, in the sixth amendment to the defence, though it could and should have been pleaded from the outset, and it decided the case. The Beoco approach was not a mandatory rule, and a time-based order would be hard to apply, so the court gave effect to its spirit by raising the discount to 70%.

The court also reviewed issue-based costs at length. It found the objections from principle not insurmountable, but the practical difficulties of separating, framing, attributing and assessing issues substantial; it did not rule such orders out in the SICC but urged caution.

On joint liability, the general rule is that unsuccessful co-claimants are jointly and severally liable, resting on fair allocation of risk. Here BCBC's guarantee claim against BI was essentially separate and had been withdrawn, after which BCBC took no further part. The respondents' point that BCBCS was a shell company was one of convenience, not principle.

The Court of Appeal allowed the appeal and set aside the SICC's orders on post-transfer costs. BCBCS was ordered to pay BR's post-transfer costs calculated from the claimed figure, less costs solely attributable to BCBC's withdrawn claim, then reduced by 10% and a further 70%. BCBC was liable to BI only for costs solely attributable to its withdrawn claim, subject to the 10% discount, with the parties to agree the amount or write to the court within 14 days. No order was made on the costs of the appeal.