DKB v DKC

Facts

DKB, as assignee of a final award from a Swiss-seated arbitration, obtained leave on 22 December 2023 in SIC/OA 10/2024 to enforce the award against DKC, seeking judgment for US$315,913,988.82. DKC applied in HC/SUM 1177/2024 to stay enforcement under s 6 of the International Arbitration Act 1994, relying on a settlement deed that sent disputes to arbitration. DKB opposed a stay, saying the breach of the deed was unarguable; alternatively it sought conditions, including prompt arbitration in Stockholm and security.

On 19 February 2025 the court granted a stay on condition that DKC commence an expedited Stockholm arbitration within 10 days and prosecute it diligently, but did not order security. DKC did not comply. It obtained an extension to 12 April 2025 in SIC/SUM 17/2025 and was ordered to pay the costs of that application, but again did not commence arbitration. On 13 May 2025 the court lifted the stay on DKB's application in SIC/SUM 18/2025, with costs to DKB. Costs of the stay application and of three earlier interlocutory summonses by DKB (SUM 25, 46 and 51) remained, and this judgment dealt with entitlement and quantum.

Issues

1. Whether DKC, as the party that obtained the stay, should have its costs of the stay application
2. Whether DKC's failure ever to commence arbitration bore on the costs of the stay application
3. What costs should follow on the related summonses and in what amounts

Holding

The International Judge made no order as to costs of the stay application or of SUM 25 and SUM 51. He ordered DKB to pay DKC's costs of SUM 46 of $25,820 (all-in), and ordered DKC to pay DKB's costs of SUM 17 and SUM 18 assessed at $70,000 plus disbursements of $1,284.94. There was no order on the costs of the costs proceedings, each side having partly succeeded.

Reasoning

The court accepted that the successful party is generally entitled to costs, and that DKC was the successful party on the stay application: it obtained a stay over DKB's opposition, and the security DKB sought was refused. It also accepted that later conduct is generally irrelevant to costs. But costs remain discretionary and must reflect justice and common sense, as noted in BCBC Singapore Pte Ltd and another v PT Bayan Resources TBK and another [2024] 1 SLR 1.

The court did not accept DKB's case that the stay application was brought for an improper collateral purpose. Even so, the events after the stay led inevitably to the conclusion that DKC never intended to commence the arbitration on which the stay rested. Fairness meant it should not recover costs. DKB, whose primary case that there was no arguable defence failed, should bear its own costs too.

SUM 25 and SUM 51 were linked to the stay application and DKB's success in them did not affect the outcome, so no order was made. For SUM 46, DKC's claimed sum was reasonable and proportionate. For SUM 17 and SUM 18, the amounts claimed were more than reasonable and proportionate and were reduced.

From the judgment