Crescendas Bionics Pte Ltd v Jurong Primewide Pte Ltd

Crescendas Bionics Pte Ltd, a property developer, engaged Jurong Primewide Pte Ltd (JPW) as management contractor under a letter of intent signed on 30 June 2008 to build Biopolis 3, a business park at One-North. The project was certified complete on 12 January 2011, well beyond the 18 months allowed. Crescendas sued in Suit No 477 of 2015 and JPW counterclaimed, with the trial split into liability and damages.

On liability, as varied by the Court of Appeal in [2019] SGCA 63, the delay totalled 334 days: Crescendas was responsible for 173 days through acts of prevention and JPW for 161 days. JPW won on the preliminaries sum, which was held fixed at $12.3 million, and on its $2.5 million share of shared savings, and Crescendas defeated JPW's $155,000 bond counterclaim. The parties then settled the refund of additional preliminaries at $2.75 million. On damages, the Appellate Division in [2023] SGHC(A) 9 awarded $4,185,802.60 for lost net rental revenue, $1,061,285.86 for holding costs and $128,864.46 for site staff costs. It set aside earlier High Court costs orders and directed the High Court to review them.

In this ex tempore judgment the High Court decided the costs of both tranches and of eight interlocutory applications. Both parties claimed success in the first tranche; JPW accepted that Crescendas succeeded in the second but disputed the amount. The parties agreed not to use an issues-based approach and to rely on the Appendix G costs guidelines.

1. Which party was the successful party in the first tranche on liability.
2. What proportion of its legal costs, disbursements and expert fees Crescendas should recover for each tranche.
3. Which party should receive costs of the interlocutory applications whose costs were in the cause.

On the successful party, the court applied Comfort Management Pte Ltd v OGSP Engineering Pte Ltd and another [2022] 5 SLR 525: in commercial litigation, the winner is generally the party found entitled to receive money, judged on the overall outcome. Although the trial was split, the overall result was that JPW had to pay Crescendas a substantial sum it could not have recovered without suing. JPW's claim to have won $12.3 million was wrong: the finding only meant the preliminaries sum was fixed and need not be refunded, not that Crescendas paid more. JPW's only monetary win was the $2.5 million savings share.

On proportions for the first tranche, JPW's successes and Crescendas' conduct justified a substantial discount. Crescendas had blamed JPW for all 355 days of delay, although the High Court had earlier found that Crescendas itself engaged in interventionist conduct to slow the project; its extreme positions lengthened the case. Its success was therefore limited.

For the second tranche, JPW's proposal to award costs only in proportion to the amount recovered was too simplistic, ignoring the case's complexity, JPW's very low valuation and the $2.75 million refund flowing from the first tranche findings. Crescendas also won on the multi-year method. Because the parties' figures diverged widely, legal costs were set at the top of the Appendix G ranges. Engaging three experts to quantify delay was excessive, so their fees were cut, Mr Toh's most heavily because it was far higher than the others. The court expert, needed because both sides took extreme positions, was paid equally. Interlocutory costs followed agreed amounts and Crescendas' success in the first tranche.

The High Court ordered JPW to pay Crescendas $409,357.79 for the first tranche, being 30% of legal costs of $745,000 and 40% of disbursements, and $889,193.92 for the second tranche, being 80% of legal costs fixed at $413,000, 80% of general disbursements, 70% of Dr Woo's and Mr Yeo's joint fee and 30% of Mr Toh's fee, with the court expert's fee shared equally. It also ordered $15,951.17 for the interlocutory matters, for a total of $1,314,502.88.