.
Ng Eng Ghee and Others v Mamata Kapildev Dave And Others (Horizon Partners Pte Ltd, intervener) and Another Appeal[2009] SGCA 30
07 July 2009
.
To recap on the order of proceedings:
1) STB dismissed the sale because of a technicality. (First Tranche)
2) High Court overturned the STB decision and approved the sale and sent it back to the STB.
3) STB approved the sale. (Second Tranche)
4) High Court approved the sale again.
5) Court of Appeal dismissed the sale.
.
1. .... A party’s vindication on the merits may prove to be hollow if the fruits of success are soured by uncompensated costs. The primary objective of a costs order is to compensate the successful party for all reasonable costs incurred rather than to punish the unsuccessful party. Nevertheless, it is trite law that the court may exercise its discretion to give different costs orders on the basis of what it thinks is fair and just. In adjudicating on costs, the court also has to bear in mind that unmerited barriers in the path of recovering reasonably incurred costs might well have the chilling effect of deterring parties, in future, from legitimately pursuing or defending their rights.
.
This decision determined (a) who is entitled to costs; (b) what costs are recoverable ; and (c) who is liable to pay. The appellate court has the power to deal with the costs of all proceedings preceding the appeal (13).
.
From my layman's reading this is what I can glean from the decision..
.
(a) Who is entitled to costs
.
1.The winning party - in this case the appealing minority owners.
2. The non-appealing minority objectors
11. Where a lower court or tribunal has made a decision against two or more parties with overlapping interests and the appeal succeeds on grounds earlier raised by parties who have chosen not to appeal, should the parties who have chosen not to appeal be also awarded their costs below by the appellate court?
.
16. All that need be said for now is that the court’s power to order costs to be paid to parties who have chosen not to appeal must always be judicially exercised. Applications for such orders must also be made timeously to the appropriate appellate court.
.
17 The fact that they did not appeal is not critical because other appellants were able to appeal and succeed before us on precisely the same issues. The fact that they had not accepted the “risk” of paying the costs of an unsuccessful appeal is neither here nor there.
.
18 We are especially mindful that, given the significant costs (and not insignificant irrecoverable out-of-pocket expenses) incurred at every step of these bitterly fought, convoluted and labyrinthine proceedings, it was not unreasonable for some of the objecting subsidiary proprietors to forgo their appellate participation before this court. We cannot lose sight of the fact that the non-appealing parties have (together with the appellants) been literally driven from pillar to post in their arduous efforts to protect their homes. In their submissions to this court, they have cogently explained why they should be entitled to the costs they have incurred in these proceedings[note: 1]:
[W]e were made to defend our homes against an en bloc process actuated by a lack of good faith. We have sacrificed time, effort and money, not for any gain but to maintain the status quo, that is, to keep our homes.
[W]e were made to defend our homes against an en bloc process actuated by a lack of good faith. We have sacrificed time, effort and money, not for any gain but to maintain the status quo, that is, to keep our homes.
.
All applicants are entitled to one set of costs each as it was not deemed oppressive nor embarrassing or excessive. It was reasonable that each party engage it's own lawyer given the importance of the subject matter at stake - their homes.
.
26 Given the emotional and sentimental attachment that people tend to form to their homes, it was quite understandable that each set of appellants chose counsel they trusted to personally manage their case, rather than simply casting their lot together with all of the other objecting subsidiary proprietors. The appellants have quite reasonably explained that they had indeed aligned themselves with other subsidiary proprietors they were familiar with and on that basis had attempted to engage common counsel where feasible.
.
3. Successful litigants-in person (ie appealing owners without legal representation).
34. ..successful litigants-in-person would generally be awarded “such costs as would reasonably compensate the litigant for the time expended by him, together with all expenses reasonably incurred”.
(b) What costs are recoverable and (c) Who is liable to pay
Costs were not recoverable for the first STB hearing because the defect (3 missing pages) on which the sale was first dismissed had not been part of the objections filed by the objecting minority owners.
1. The Buyer (the intervener) came in for a dressing down and was ordered to share the costs along with the respondents (majority) for the High Court and Appeals as they
37 . ..[the intervener] took the lead in defending the Horizon Board’s decision to make an order for the collective sale. Indeed, although the intervener was not allowed to appear in the Horizon Board proceedings, it was quite apparent that the intervener was directly or indirectly influencing the majority owners in the conduct of those proceedings. Furthermore, it can be fairly said that the intervener by its conduct engendered the continuation of the dispute in the Second Tranche, the High Court proceedings and the present appeals
38 On the other hand, we note that the respondents could well have simply stood their ground and insisted that the collective sale had been aborted instead of meekly acquiescing to the intervener’s attempt to prevail on them through legal means .... They cannot be permitted to shirk all responsibility for their role in this matter and especially the conduct of the proceedings below.
2. The repondents (majority) are to pay for the second STB proceedings alone, the High Court and Appeals along with the Buyer.In Summary:
.
43 To conclude, our costs orders are as follows:
(a) No order as to the costs for the First Tranche of the Horizon Board Proceedings and OS 1269/2007.
(b) The appellants in CA 119/2008 (represented by HEP) are entitled to, firstly, one set of costs for the Second Tranche of the Horizon Board proceedings, to be taxed for two counsel and borne in full by the respondents; and, secondly, one set of costs for the High Court proceedings and one set of costs for CA 119/2008, each to be taxed on the basis of two counsel and borne equally by the respondents and the intervener. The appellants in CA 119/2008 are not entitled to recover any costs apropos the administrative and constitutional law arguments raised in the Horizon Board proceedings and the High Court proceedings. They are limited to recovering only 60% of the assessed costs of the aforementioned proceedings (see [28] above).
.
(c) The appellants in CA 120/2008 are entitled to, firstly, one set of costs for the Second Tranche of the Horizon Board proceedings, to be taxed on the basis of two counsel and borne fully by the respondents; and, secondly, one set of costs for the High Court proceedings and one set of reasonable compensatory costs for CA 120/2008, each pursuant to O 59 r 18A of the Rules and to be borne equally by the respondents and the intervener. They are limited to recovering only 80% of the assessed costs of the aforementioned proceedings (see [28] above), and the costs of the Second Tranche of the Horizon Board proceedings are to be shared equally with the non-appealing parties (see [28] above and (d) below).
.
(d) The non-appealing parties (ie, Then Khek Koon and Tan Kim Lian Jasmine) are entitled to, firstly, one set of costs for the Second Tranche of the Horizon Board proceedings, to be taxed on the basis of two counsel and borne fully by the respondents; and, secondly, one set of reasonable compensatory costs for the High Court proceedings pursuant to O 59 r 18A, to be borne equally by the respondents and the intervener. They are also limited to recovering only 80% of the assessed costs of the aforementioned proceedings (see [28] above), and the costs of the Second Tranche of the Horizon Board proceedings are to be shared equally with the appellants in CA 120/2008(see [28] above and (c) above).
(d) The non-appealing parties (ie, Then Khek Koon and Tan Kim Lian Jasmine) are entitled to, firstly, one set of costs for the Second Tranche of the Horizon Board proceedings, to be taxed on the basis of two counsel and borne fully by the respondents; and, secondly, one set of reasonable compensatory costs for the High Court proceedings pursuant to O 59 r 18A, to be borne equally by the respondents and the intervener. They are also limited to recovering only 80% of the assessed costs of the aforementioned proceedings (see [28] above), and the costs of the Second Tranche of the Horizon Board proceedings are to be shared equally with the appellants in CA 120/2008(see [28] above and (c) above).
.
(e) The interest on the deposit money is to be shared by all the subsidiary proprietors and each subsidiary proprietor’s entitlement is to be calculated, based on the share value and strata area of each unit in equal weightage, as illustrated in cl 17.1(a) of the CSA. It is for each individual objecting subsidiary proprietor to decide how he wants to deal with the amount paid over to him.
(e) The interest on the deposit money is to be shared by all the subsidiary proprietors and each subsidiary proprietor’s entitlement is to be calculated, based on the share value and strata area of each unit in equal weightage, as illustrated in cl 17.1(a) of the CSA. It is for each individual objecting subsidiary proprietor to decide how he wants to deal with the amount paid over to him.
.
Interesting addition..
The distribution of the interest on the deposit was set out in the CSA under paragraph 17. It stated that the interest be distributed to the majority owners only - after deduction of disbursements accrued for individual units (eg solicitor's aborted legal costs). Clever lawyer to make sure his costs were covered even under an aborted sale...
.
HOWEVER, this clever clause 17 received a knocking form the Court of Appeal. The solicitors who drew up the CSA had confused beneficial rights with contractual rights and the sale committee is not entitled to decide that only the signatories to the CSA are entitled to the interest. They ordered that ALL owners receive their share in accordance withtheir share value.
The majority owners are tied to their contractual agreement to pay disbursements from their share BUT THE OBJECTING MINORITY OWNERS CAN DO WHATEVER THEY LIKE WITH THE MONEY!.
.
TOUCHE!
.
16 July 2009
The Straits Times Newspaper is a bit slow off the mark - the ruling came out a week ago...
Straits Times - 16 July 2009
