Hii Yii Ann & Anor v Tiong Thai King & Anor

Facts

In Originating Application No 15 of 2023 in the Singapore International Commercial Court, the claimants Hii Yii Ann and Alliance Lumber (PNG) Limited sued Tiong Thai King (the first defendant) and Everrise Cooperation Pte Ltd (the second defendant). The first defendant brought a counterclaim against the second defendant, among others, worth US$103,645.98.

By SIC/SUM 1/2024, filed on 5 January 2024, the second defendant applied to strike out that counterclaim in its entirety. In a judgment dated 10 July 2024 the court dismissed the summons and ordered the second defendant to pay the first defendant's costs of it. This judgment dealt with the amount of those costs.

The first defendant filed a schedule showing costs of $56,765 and disbursements of $1,461, and asked for $40,000 inclusive of disbursements, saying he had won on every issue (waiver, res judicata, issue estoppel, the extended doctrine of res judicata and abuse of process), that the issues were complex and that the application was unmeritorious. The second defendant, without a formal application, asked for the costs order to be varied to costs in the cause, and otherwise argued that costs should be fixed at $6,000, the low end of the Appendix G range for striking out applications under the General Division costs guidelines.

Issues

1. Whether the earlier costs order should be varied so that the costs of the summons were costs in the cause
2. Whether the costs claimed by the first defendant were reasonably incurred and reasonable in amount
3. Whether the Appendix G range for striking out applications should cap the costs awarded

Holding

The court refused the second defendant's request to vary the costs order and ordered the second defendant to pay the first defendant's costs of the summons assessed at $35,000, less than the $40,000 the first defendant sought but well above the $6,000 the second defendant proposed.

Reasoning

On variation, the second defendant's points gave no basis to change the order. It was the claimants, not the second defendant, who had sought default judgment, and nothing suggested the first defendant knew of that application when he filed his counterclaim. The chronology in the earlier judgment showed that all parties knew of his claim before default judgment, so nothing he did was unfair or in bad faith.

On reasonableness, the court applied O 22 r 3 of the SICC Rules and Senda International Capital Ltd v Kiri Industries Ltd [2023] 1 SLR 96: a successful party recovers costs sensibly and reasonably incurred and reasonable in amount. Taken alone, the sums for the reply affidavits and written submissions raised some doubt, but the first defendant was already claiming $16,765 less than his actual costs, and the other items were reasonable and proportionate.

On Appendix G, the court took the range into account, as O 22 r 3(5)(b) permitted for a matter transferred from the General Division, but held it did not require an award within that range, let alone at its low end. The matter had some complexity, shown by detailed affidavits and extensive submissions that shortened the hearing. The remaining concern was proportionality: $40,000 on an interlocutory application about a claim of that size might be disproportionate, but the application sought to strike out the whole counterclaim and the first defendant was entitled to answer it properly. Balancing these, the court fixed costs at $35,000.

From the judgment