Cgg v Cgh
| Jurisdiction | England & Wales |
| Judge | Woo Bih Li JAD,Belinda Ang Saw Ean JAD,See Kee Oon J |
| Judgment Date | 23 August 2021 |
| Docket Number | Civil Appeal No 19 of 2021 |
| Court | High Court |
[2021] SGHC(A) 7
Appellate Division of the High Court
Belinda Ang Saw Ean JAD, Woo Bih Li JAD and See Kee Oon J
Civil Appeal No 19 of 2021
Tham Lijing (Tham Lijing LLC) (instructed), Quahe Cheng Ann Lawrence, Ho Shiao Hong (He Xiaohong) andJoel Raj Moosa (Quahe Woo & Palmer LLC) for the appellant;
Tan Chau Yee, Kok Yee Keong (Guo Yiqiang) andMarcus Ho Shing Kwan (Harry Elias Partnership LLP) for the respondent.
Abigroup Ltd v Sandtara Pty Ltd [2002] NSWCA 45 (not folld)
BNP Paribas SA v Jacob Agam [2018] 3 SLR 1 (folld)
Henderson v Henderson (1843) 67 ER 313 (refd)
John v Price Waterhouse [2002] 1 WLR 953 (not folld)
Maryani Sadeli v Arjun Permanand Samtani [2015] 1 SLR 496 (folld)
NSL Oilchem Waste Management Pte Ltd v Prosper Marine Pte Ltd [2020] SGHC 204 (refd)
Then Khek Koon v Arjun Permanand Samtani [2014] 1 SLR 245 (folld)
Turf Club Auto Emporium Pte Ltd v Yeo Boong Hua [2017] 2 SLR 12 (folld)
Rules of Court (2014 Rev Ed) O 56A r 5(b)
Women's Charter (Cap 353, 2009 Rev Ed)
Damages — Compensation and damages — Recovery of legal costs — Parties agreeing to indemnity provision for legal fees and disbursements — Right to indemnity arising in favour of one party — Party failing to seek costs under indemnity provision — Party commencing fresh proceedings to recover remainder of legal fees — Whether party precluded from commencing fresh proceedings to recover unrecovered legal costs
Following the breakdown of the parties' marriage, the parties entered into a deed of separation (“the Deed”). Pursuant to the Deed, divorce proceedings were commenced in the Family Justice Courts (“FJC”). The FJC granted interim judgment, which included a consent order in the terms of the Deed (“the Consent Order”). Paragraph 3(k)(39) of the Consent Order (which was based on cl 50 of the Deed) contained a provision stating that in the event that one party sought to revisit the ancillary matters in the divorce proceedings in breach of the Deed and/or the Consent Order, that party shall indemnify the other party for any and all legal fees and disbursements incurred in connection with the breach and subsequent enforcement of the Deed (“the indemnity provision”).
On 9 July 2019, the respondent filed a summons (“SUM 2286”) in the FJC seeking to vary certain parts of the Consent Order relating to the children's maintenance. SUM 2286 was dismissed on 20 November 2019. Although the appellant's counsel had initially filed written costs submissions that the district judge (“DJ”) should uphold the indemnity provision, his oral submission was for “[c]osts to be agreed or taxed, and if costs agreement to be enforced separately if necessary”. The DJ ordered costs of $2,000 (inclusive of disbursements) to be paid by the respondent to the appellant.
Subsequently, the appellant filed HC/OS 192/2020 (“OS 192”) seeking to recover the remainder of his legal fees, disbursements and goods and services tax amounting to $329,975.45, pursuant to cl 50 of the Deed and/or para 3(k)(39) of the Consent Order. The High Court judge (“the Judge”) dismissed OS 192. The Judge held that the indemnity provision was operative as SUM 2286 constituted a revisiting of the ancillary matters, and such revisiting was in breach of the Deed and/or the Consent Order because it was ultimately unsuccessful. However, the appellant's claim was precluded by the general rule against recovery of unrecovered legal costs, issue estoppel and res judicata. Dissatisfied, the appellant appealed against the Judge's decision.
Held, dismissing the appeal:
(1) On a true construction of the Consent Order, para 3(k)(39) was intended to reserve a party's right to make a contractual claim for costs under the Deed in the event that the other party sought to revisit the ancillary matters in the divorce proceedings in breach of the Deed and/or the Consent Order. The effect of para 3(k)(39) was that should one party seek to revisit the ancillary matters in breach of the Deed and/or the Consent Order, a substantive right would arise in favour of the other party to bring a contractual claim for costs under cl 50 of the Deed: at [10].
(2) The appellant's submission that his claim was for specific enforcement of the respondent's primary payment obligation was a new point that should not ordinarily have been raised on appeal without leave of court. The appellant was permitted to raise the new point but would have to bear some costs thereby occasioned. There was no discernible prejudice to the respondent who had ample opportunity to, and did address this point in the Respondent's Case: at [11].
(3) The indemnity provision required two conditions for the right to an indemnity to arise: (a) there had to be a revisiting of ancillary matters; and (b) this revisiting had to be in breach of the Deed and/or the Consent Order. There was no reason to disturb the Judge's finding that these two conditions were satisfied. Thus, the relevant breach occurred when the respondent filed SUM 2286, and the DJ's decision to dismiss SUM 2286 simply confirmed the date of breach: at [13].
(4) The policy considerations underlying the law on costs required that the claim for an indemnity be enforced before the court made a ruling on such costs. This was because the procedural law on costs informed by policy considerations was against parasitic litigation brought to claim what in substance was unrecovered legal costs of previous proceedings. The law on costs made no distinction of principle between a claim for costs as damages and a claim for costs based on a primary payment claim. As the appellant's claim was in substance one for unrecovered legal costs, the policy considerations underlying the law on costs applied with full force, and the measure of the appellant's claim was subject to these policy considerations: at [16].
(5) The appellant's entitlement to rely on the indemnity provision had already arisen at the time the DJ was dealing with the costs of SUM 2286. If the appellant wished to enforce his indemnity, he ought to have argued his entitlement to costs based on the terms of the indemnity before the DJ, who would then determine the scope of the indemnity provision and the appropriate costs order. However, the appellant decided not to rely on the indemnity provision and the DJ rendered a costs decision accordingly. In these circumstances, the appellant was precluded from recovering the difference between the amount of costs ordered in his favour and the amount of costs recoverable under the indemnity provision. Furthermore, the appellant's purported attempt to reserve his rights was ineffective: at [19] to [21].
(6) The appellant's claim was precluded by issue estoppel. There was identity of subject matter because the same question was being determined, ie, how much of his legal fees and expenses should the appellant be entitled to claim from the respondent. This was finally and conclusively determined by the DJ, who ordered costs of $2,000 in the appellant's favour. Thus, the appellant was estopped from raising the same issue again in OS 192: at [24].
(7) The appellant's claim was precluded by the extended doctrine of res judicata, ie, abuse of process. The appellant had the opportunity to raise the indemnity provision in his costs submissions before the DJ but failed to do so. Moreover, his reasons for such failure were not compelling: at [25].
23 August 2021
Belinda Ang Saw Ean JAD (delivering the judgment of the court ex tempore):
1 This is an appeal against the decision of the General Division of the High Court in CGG v CGH dated 20 January 2021 delivered via Registrar's Notice (“the Judgment”). The appellant's claim was for his unrecovered legal fees, disbursements and goods and services tax incurred by...
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