Case Details
- Title: CBX & Anor v CBZ & 2 Ors
- Citation: [2021] SGCA(I) 4
- Court: Court of Appeal of the Republic of Singapore
- Date: 21 June 2021
- Judges: Judith Prakash JCA, Quentin Loh JAD and Jonathan Mance IJ
- Case Number: Civil Appeal No 197 of 2020
- Related Appeal: CA/CA 136/2020 (appeal against the Merits Judgment)
- Proceeding Below: Originating Summons No 1 of 2020 (transferred to the SICC)
- Original High Court Originating Action: HC/OS 1388/2019
- Re-designation after Transfer: SIC/OS 1/2020
- Plaintiffs/Applicants (Appellants): CBX & Anor
- Defendants/Respondents (Respondents): CBZ & 2 Ors
- Legal Area: Civil procedure; costs in SICC and transferred proceedings; international arbitration-related court supervision
- Statutes Referenced: International Arbitration Act (Cap 143A) (in relation to setting aside); UNCITRAL Model Law (as scheduled/implemented); Rules of Court (Cap 322, R 5, 2014 Rev Ed)
- Key Procedural Instruments: Order 69A rule 2(1)(d) of the Rules of Court; Order 59 of the Rules of Court; Order 110 rule 46 of the Rules of Court
- Arbitral Context: ICC International Court of Arbitration partial awards (5 June 2019; clarified 5 August 2019) and consolidated final award (costs) (9 August 2019)
- Lower Court Decisions: Merits Judgment: [2020] 5 SLR 184; Costs Judgment: [2021] 3 SLR 10
- Hearing Dates: 5 February 2021 (CA); judgment reserved
- Judgment Length: 27 pages; 8,386 words
Summary
CBX & Anor v CBZ & 2 Ors ([2021] SGCA(I) 4) is a Singapore Court of Appeal decision addressing the costs regime applicable when a High Court proceeding is transferred to the Singapore International Commercial Court (SICC) midstream. The case arose from the Buyers’ applications to set aside parts of ICC arbitral awards. Although the High Court initially heard the setting aside applications, the proceedings were transferred to the SICC by an order of the High Court Deputy Registrar.
The Court of Appeal ultimately held that the costs order made by the SICC judge could not stand once the merits outcome changed: the Court of Appeal reversed the SICC’s merits decision and set aside the arbitral awards. However, the Court of Appeal went further and provided guidance on principle for future cases, focusing on how the Supreme Court’s “Appendix G” costs guidelines (which are tied to High Court proceedings) should be treated when a matter is transferred to the SICC. The Court emphasised that SICC costs are governed by a “reasonable costs” approach under the Rules of Court, and that Appendix G is not automatically displaced or automatically determinative; rather, it may be relevant depending on the transfer order and the circumstances.
What Were the Facts of This Case?
The underlying dispute concerned two sets of ICC arbitral proceedings. In those arbitrations, CBZ was the claimant in one set, with CBX and CBY as respondents; in the other, CCA and CCB were claimants with CBX and CBY as respondents. The ICC tribunal issued partial awards dated 5 June 2019, which were clarified by further awards dated 5 August 2019. A consolidated final award (costs) was also issued on 9 August 2019. The “Awards” collectively referred to the partial awards and the consolidated costs award.
The Buyers (CBX and CBY) filed an originating summons in the High Court, HC/OS 1388/2019, on 5 November 2019. The Buyers sought to set aside parts of the Awards. The Sellers (CBZ, CCA and CCB) were named as respondents in the High Court proceeding. The setting aside applications thus engaged Singapore’s court supervisory jurisdiction over international arbitration awards, including the statutory framework under the International Arbitration Act (Cap 143A) and the UNCITRAL Model Law provisions on setting aside.
On 14 February 2020, the High Court ordered—on its own motion—that the setting aside proceedings be transferred to the SICC. The transfer was accompanied by an order of the Deputy Registrar (referred to in the Court of Appeal judgment as the “Appendix G order”), which reserved for the SICC the issue of whether the High Court costs scale and Order 59 of the Rules of Court should continue to apply to the assessment of costs in respect of proceedings in and arising from HC/OS 1388/2019 after transfer. The transfer order was made in the presence of the parties at a pre-trial conference convened to inform them of the intention to transfer.
After transfer, the proceedings were re-designated as SIC/OS 1/2020. At the time of transfer, the parties had already filed their first round of affidavits. Four further affidavits were filed after transfer, and both parties submitted written arguments before the hearing. The SICC judge heard the matter over several hours on 15 June 2020 and delivered the merits decision on 16 July 2020 (the “Merits Judgment”). The judge dismissed the Buyers’ setting aside applications and ordered the parties to submit agreed directions for determining costs (incidence and quantum). A subsequent hearing on costs resulted in the “Costs Judgment” delivered on 8 October 2020, ordering the Buyers to pay the Sellers costs of $150,000 all-in (inclusive of disbursements) with interest.
What Were the Key Legal Issues?
The Court of Appeal identified three issues raised by the Buyers in their appeal against the Costs Judgment. The first two issues were framed as questions of principle, while the third concerned the exercise of discretion in assessing the quantum of costs.
First, the Court had to decide whether the SICC judge erred in finding that Appendix G would not (at least) be applicable to costs incurred before the transfer of the proceedings to the SICC. This required interpretation of the Deputy Registrar’s transfer order (the Appendix G order) and its effect on the costs regime for pre-transfer costs.
Second, the Court had to determine whether the judge erred in entirely disregarding the guidance of Appendix G when assessing the reasonableness of costs incurred after the transfer to the SICC. This issue required the Court to consider the relationship between Appendix G (which is designed to guide party-and-party costs awards in the Supreme Court) and the SICC’s distinct costs framework under the Rules of Court.
Third, the Court had to consider whether the judge erred in finding that the $150,000 all-in sum was “reasonable” in the circumstances. This issue engaged the appellate standard for interfering with a costs assessment, particularly where the trial judge has discretion and has made findings about reasonableness.
How Did the Court Analyse the Issues?
The Court of Appeal began by setting out the applicable costs regimes. Costs in High Court civil proceedings are governed by Order 59 of the Rules of Court. Costs in SICC proceedings are governed by Order 110 rule 46 (“Rule 46”). In addition, the Supreme Court has issued “Guidelines for Party-and-Party Costs Awards in the Supreme Court of Singapore”, commonly referred to as “Appendix G”. Appendix G provides ranges and methodology for party-and-party costs awards in specified types of proceedings, including contentious originating summonses heard in the High Court.
Crucially, the Court explained that Appendix G is not binding in the strict sense; judges are not bound to apply the ranges, though they often do unless there is little reason to depart. The Court highlighted that Appendix G’s prescriptive ranges can materially influence quantum. By contrast, Rule 46 adopts a general “reasonable costs” approach: the successful party must be paid the reasonable costs of the application or proceedings, unless the Court orders otherwise. The Court noted that this “reasonable costs” assessment is open-textured and can involve factors beyond hearing days and transcription services.
Against this background, the Court addressed the first issue: whether Appendix G applied to pre-transfer costs. The parties had accepted that the answer turned on interpreting the Appendix G order. The Sellers’ position was that the transfer order left it to the SICC judge to decide the extent to which Appendix G should apply to pre- and post-transfer costs. The Buyers argued for a narrower reading: because the Appendix G order did not refer to “all” costs (unlike an earlier SICC-related costs decision in BYL and another v BYN [2020] 4 SLR 204 (“BYL (Costs)”), which referred to “costs in respect of all proceedings”), the Deputy Registrar must have intended that the SICC judge would only decide whether post-transfer costs should be assessed by reference to Appendix G or Rule 46.
The SICC judge rejected the Buyers’ reading, and the Court of Appeal examined whether that rejection was correct. The Court of Appeal accepted that the absence of the word “all” created ambiguity and that the Buyers’ construction was “plausible”. However, the Court agreed with the SICC judge that the Deputy Registrar’s intended effect was, in substance, the same as in BYL (Costs): it was for the SICC to decide whether Appendix G applied to both pre- and post-transfer costs. The Court reasoned that, given the parties’ sharp difference at the transfer stage, it was more logical that the Deputy Registrar would reserve the issue for the SICC judge rather than partially decide it by implication.
On the second issue, the Court of Appeal considered whether the SICC judge erred by disregarding Appendix G guidance for post-transfer costs. The Court’s analysis proceeded from the principle that SICC costs are governed by Rule 46 and the “reasonable costs” standard. Appendix G may provide guidance, but it does not automatically control the SICC’s assessment. The Court therefore treated Appendix G as potentially relevant context rather than a mandatory yardstick. The SICC judge’s approach—while perhaps not giving Appendix G any meaningful weight—was assessed in light of the transfer order, the open-textured nature of “reasonableness” under Rule 46, and the need for a coherent costs methodology in transferred proceedings.
Finally, the Court addressed the third issue: whether $150,000 all-in was reasonable. The Court of Appeal noted a key structural problem: the basis for the Costs Judgment was the SICC judge’s merits outcome. The SICC judge had awarded costs on the footing that the Sellers prevailed in the setting aside applications. However, the Court of Appeal had already reversed the Merits Judgment in the related appeal (CBX and another v CBZ and others [2021] SGCA(I) 3, delivered on 21 June 2021), concluding that the arbitral awards should be set aside. As a result, the Buyers were the successful parties in CA 136. That meant the premise for the costs order no longer held, and the costs order had to be set aside.
Even so, the Court of Appeal did not confine itself to a mechanical reversal. It considered it appropriate to provide substantive guidance on the assessment of costs in transferred proceedings, because the issue was likely to recur and because the Buyers’ appeal against the costs assessment raised points of principle. The Court thus used the occasion to articulate how Appendix G should be approached in the SICC context, and how “reasonable costs” should be assessed when the proceeding has migrated from the High Court to the SICC.
What Was the Outcome?
The Court of Appeal allowed the Buyers’ appeal against the Costs Judgment. Since the Court of Appeal reversed the merits decision and set aside the arbitral awards, the Buyers became the successful parties, and the Sellers’ entitlement to costs under the SICC judge’s reasoning fell away. Accordingly, the costs order made by the SICC judge was set aside.
In practical terms, the decision means that where a costs order is premised on a merits outcome that is later reversed, the costs order cannot stand. More broadly, the Court’s guidance clarifies that in transferred High Court-to-SICC proceedings, the SICC must apply the Rule 46 “reasonable costs” framework, while Appendix G may be relevant depending on the transfer order and the proper interpretation of reserved issues.
Why Does This Case Matter?
CBX & Anor v CBZ & 2 Ors is significant for practitioners because it addresses a recurring procedural scenario in Singapore arbitration-related litigation: a setting aside application begins in the High Court but is transferred to the SICC. Costs consequences can be substantial, and parties often have strategic concerns about whether High Court costs guidelines (including Appendix G ranges) will continue to influence quantum after transfer.
The Court of Appeal’s reasoning provides a structured approach to interpreting transfer orders that reserve costs questions. It confirms that ambiguity in the wording of such orders will be resolved by considering the factual context and the likely intention of the Deputy Registrar, particularly where the parties had already canvassed competing interpretations at the transfer stage. This reduces uncertainty and helps lawyers advise clients on the likely costs exposure when transfer is contemplated.
More importantly, the decision reinforces that SICC costs are governed by Rule 46’s “reasonable costs” standard rather than by Appendix G as a strict controlling instrument. Appendix G remains relevant as guidance, but the SICC judge must still conduct an assessment consistent with the SICC’s procedural and substantive framework. For litigators, this means that costs submissions in transferred cases should address both: (i) the interpretation of the transfer order and reserved issues; and (ii) the “reasonableness” factors under Rule 46, including the nature of the work done pre- and post-transfer.
Legislation Referenced
- International Arbitration Act (Cap 143A), including Section 24
- UNCITRAL Model Law on International Commercial Arbitration, Articles 34(2)(a) and 34(2)(b)
- Rules of Court (Cap 322, R 5, 2014 Rev Ed), Order 69A rule 2(1)(d)
- Rules of Court (Cap 322, R 5, 2014 Rev Ed), Order 59
- Rules of Court (Cap 322, R 5, 2014 Rev Ed), Order 110 rule 46
Cases Cited
- BYL and another v BYN [2020] 4 SLR 204 (“BYL (Costs)”)
- CBX and another v CBZ and others [2020] 5 SLR 184 (“Merits Judgment”)
- CBX and another v CBZ and others [2021] 3 SLR 10 (“Costs Judgment”)
- CBX and another v CBZ and others [2021] SGCA(I) 3 (related merits appeal, delivered 21 June 2021)
Source Documents
This article analyses [2021] SGCAI 4 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.