Case Details
- Case Title: CBX & Anor v CBZ & 2 Ors
- Citation: [2021] SGCA(I) 4
- Court: Court of Appeal of the Republic of Singapore
- Date of Decision: 21 June 2021
- Judges: Judith Prakash JCA, Quentin Loh JAD and Jonathan Mance IJ
- Procedural History: Appeals against (i) a Merits Judgment and (ii) a Costs Judgment in proceedings transferred from the High Court to the Singapore International Commercial Court (SICC)
- Case Numbers: Civil Appeal No 197 of 2020 (CA 197); Civil Appeal No 136 of 2020 (CA 136) heard together
- Originating Summons: Originating Summons No 1 of 2020
- High Court Originating Action: HC/OS 1388/2019 (filed 5 November 2019)
- Transferred SICC Proceedings: SIC/OS 1/2020
- Parties: Appellants/Buyers: CBX and CBY; Respondents/Sellers: CBZ, CCA and CCB
- Arbitration Context: ICC International Court of Arbitration partial awards and consolidated costs award (5 June 2019; clarified 5 August 2019; costs award 9 August 2019)
- Legal Area: Civil procedure; costs in SICC; international arbitration-related court proceedings
- Statutes Referenced: International Arbitration Act (Cap 143A) (notably s 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) including Order 69A rule 2(1)(d)
- Rules of Court (Costs Regimes): Order 59 (High Court costs); Order 110 r 46 (SICC costs)
- Costs Guidelines: “Guidelines for Party-and-Party Costs Awards in the Supreme Court of Singapore” (Appendix G)
- Judgment Length: 27 pages; 8,386 words
- Key Prior Decisions in the Same Matter: Merits Judgment: CBX and another v CBZ and others [2020] 5 SLR 184; Costs Judgment: CBX and another v CBZ and others [2021] 3 SLR 10; Merits appeal decision: CBX and another v CBZ and others [2021] SGCA(I) 3 (21 June 2021)
Summary
CBX & Anor v CBZ & 2 Ors [2021] SGCA(I) 4 is a Singapore Court of Appeal decision addressing the costs regime applicable when proceedings are transferred from the High Court to the Singapore International Commercial Court (SICC) midstream. The case arose from applications to set aside ICC arbitral awards under the International Arbitration Act. After the High Court transferred the setting-aside proceedings to the SICC, the SICC judge assessed costs on the basis that the SICC’s more flexible “reasonable costs” approach applied, without treating the High Court’s Appendix G costs guidelines as binding or even as a guiding benchmark for costs incurred before and after transfer.
On appeal, the Court of Appeal reversed the SICC judge’s costs approach. The Court held that the transfer should not deprive parties of the practical cost implications that Appendix G would otherwise have had, and it clarified how Appendix G guidance should be considered in assessing “reasonable costs” in SICC proceedings where the case originated in the High Court. The Court also emphasised that once the merits outcome changes, the foundation for the costs order may fall away; however, it nevertheless addressed the substantive costs principles to provide guidance for future transferred cases.
What Were the Facts of This Case?
The underlying dispute concerned two ICC arbitrations and related costs. The “Sellers” (CBZ, CCA and CCB) obtained partial awards and a consolidated costs award against the “Buyers” (CBX and CBY). The Buyers then commenced High Court proceedings to set aside parts of the awards. The originating action was filed in the High Court as HC/OS 1388/2019 on 5 November 2019. The setting-aside application was brought under the International Arbitration Act framework for challenging international arbitral awards, and it invoked the grounds reflected in Article 34(2)(a) and (b) of the UNCITRAL Model Law.
During the High Court proceedings, the High Court ordered—on its own motion—that the setting-aside proceedings be transferred to the SICC. This occurred on 14 February 2020. Importantly, the transfer order included an express reservation: the issue of whether the High Court costs scale and Order 59 of the Rules of Court should continue to apply to costs assessment in respect of proceedings in and arising from HC/OS 1388/2019 after transfer was reserved to the SICC. The Court of Appeal referred to this as the “Appendix G order” (even though it concerned the continuation of High Court costs guidance and scales).
The proceedings were re-designated as SIC/OS 1/2020. By the time of transfer, the parties had already filed their first round of affidavits. After transfer, four further affidavits were filed, and the parties made written submissions. The SICC judge heard the matter over several hours on 15 June 2020, and delivered a Merits Judgment on 16 July 2020. In that Merits Judgment, the judge dismissed the Buyers’ setting-aside applications and ordered the parties to submit agreed directions for determining costs (both incidence and quantum).
Subsequently, the SICC judge delivered a Costs Judgment on 8 October 2020. The judge ordered the Buyers to pay the Sellers costs of $150,000 all-in (inclusive of disbursements), with interest at 5.33% per annum from the date of the Costs Judgment. The judge’s basis was straightforward: because the Sellers prevailed in the setting-aside applications, they should recover their costs. The Buyers then appealed both the Merits Judgment and the Costs Judgment. The Court of Appeal later reversed the Merits Judgment and set aside the arbitral awards, meaning the Buyers became the successful parties. That reversal undermined the premise for the costs order, but the Court of Appeal nonetheless addressed the detailed costs principles because the Buyers’ appeal against the Costs Judgment raised issues of principle about the costs regime after transfer.
What Were the Key Legal Issues?
The Court of Appeal identified three issues raised by the Buyers in their appeal against the Costs Judgment. Two of these were principled questions about the applicable costs regime, while the third concerned the exercise of discretion in the quantum of costs.
First, the Court had to decide whether the SICC judge erred in finding that Appendix G would not apply, at least to some extent, to costs incurred before the proceedings were transferred to the SICC. This issue required interpretation of the transfer order and consideration of how costs guidance should operate in a “split” procedural timeline (pre-transfer and post-transfer costs).
Second, the Court had to decide whether the judge erred in entirely disregarding Appendix G guidance when assessing the reasonableness of costs incurred after transfer. This issue went to the interaction between the High Court’s more structured costs guidelines and the SICC’s “reasonable costs” framework under Order 110 r 46.
Third, the Court considered whether the judge erred in finding that the $150,000 all-in sum was “reasonable” in the circumstances. This was a discretionary assessment issue, but it depended on the correct legal approach to what “reasonable” meant in a transferred case.
How Did the Court Analyse the Issues?
The Court of Appeal began by setting out the relevant costs regimes. Costs in High Court civil proceedings are governed by Order 59 of the Rules of Court. By contrast, costs in SICC proceedings are governed by Order 110 r 46. Under Order 110 r 46(1), the general rule is that the successful party in any application or proceedings must pay the reasonable costs of the application or proceedings to the successful party, unless the Court orders otherwise. Unlike the High Court regime, Order 110 r 46 is less prescriptive and does not provide numerical ranges. The SICC judge therefore has a broader discretion to determine what is “reasonable,” guided by multiple factors.
The Court then explained the role of the Supreme Court’s “Guidelines for Party-and-Party Costs Awards in the Supreme Court of Singapore” (Appendix G). Appendix G provides ranges and methodology for party-and-party costs awards in specified types of proceedings. Of particular relevance was Appendix G’s guidance for contentious originating summonses heard in the High Court, where the range generally falls between $12,000 and $20,000 per hearing day depending on factors such as whether there is cross-examination and the type of transcription service used. The Court noted that judges are not bound to apply the range, but it often provides a practical benchmark.
With this framework, the Court turned to the first two issues, which required interpretation of the transfer order and the extent to which Appendix G should continue to influence costs assessment after transfer. The parties agreed that the question was one of interpretation of the Appendix G order. The Sellers’ position was that the order left it to the judge to determine the extent to which Appendix G should apply to pre- and post-transfer costs. The Buyers’ position was more specific: they argued that because the transfer order did not refer to “all” costs, it should be read as leaving to the judge only the question of whether post-transfer costs should be assessed by reference to Appendix G or the SICC’s Order 110 r 46 approach, while pre-transfer costs should remain within the High Court’s Appendix G framework.
The SICC judge had rejected the Buyers’ reading. He accepted that the omission of the word “all” created ambiguity and that the Buyers’ construction was “plausible.” However, he concluded that the Deputy Registrar’s intended effect was the same as in an earlier case, BYL and another v BYN [2020] 4 SLR 204 (“BYL (Costs)”), where the SICC decided whether Appendix G applied to both pre- and post-transfer costs. The SICC judge reasoned that, given the parties’ sharp difference at the transfer stage, the Deputy Registrar would logically have left the matter to the SICC judge to decide.
On appeal, the Court of Appeal scrutinised this reasoning and the underlying purpose of Appendix G and the transfer mechanism. The Court’s analysis proceeded from the principle that costs guidance should not be rendered illusory by procedural re-designation. Where a case begins in the High Court and is then transferred, it would be commercially and procedurally unfair if the transfer automatically deprived the parties of the cost implications that Appendix G would have provided had the case remained in the High Court. The Court therefore treated Appendix G as a relevant benchmark for assessing reasonableness, at least for costs incurred before transfer, and as a factor that should generally inform the assessment for post-transfer costs as well.
In other words, the Court did not treat the SICC’s “reasonable costs” discretion as a blank cheque to disregard Appendix G entirely. Instead, Appendix G guidance remained relevant to the “reasonableness” inquiry, even if it was not strictly binding. The Court’s approach reflects a reconciliation between (i) the SICC’s statutory and procedural flexibility under Order 110 r 46 and (ii) the High Court’s structured costs guidance under Appendix G, which is intended to promote consistency and predictability.
Finally, the Court addressed the third issue—whether $150,000 all-in was reasonable. Because the legal approach to Appendix G had been flawed, the quantum assessment could not stand. The Court’s reasoning indicates that “reasonableness” must be assessed using the correct legal framework, which includes giving appropriate weight to Appendix G where the case’s procedural history makes it relevant. The Court also considered that the merits outcome had changed: the Court of Appeal had reversed the Merits Judgment and set aside the arbitral awards. That reversal meant that the incidence of costs should be reconsidered, and the foundation for the original costs order no longer held.
What Was the Outcome?
The Court of Appeal allowed the appeal against the Costs Judgment. Given that the Merits Judgment was reversed and the Buyers were the successful parties, the costs order against them could not remain. The Court therefore set aside the SICC judge’s costs order.
More importantly for practitioners, the Court also expressed clear views on the proper assessment of costs in transferred cases. It held that Appendix G should not be disregarded as irrelevant merely because the proceedings were transferred to the SICC, and it clarified how Appendix G guidance should be considered in determining “reasonable costs” under Order 110 r 46.
Why Does This Case Matter?
CBX & Anor v CBZ & 2 Ors is significant because it provides practical guidance on costs in a recurring procedural scenario: High Court proceedings that are transferred to the SICC. For parties in international arbitration-related court proceedings, the decision affects the strategic calculus of transfer and settlement. It also addresses a common concern that transfer could lead to materially higher or less predictable costs by removing the benefit of Appendix G.
From a doctrinal standpoint, the case clarifies the relationship between the SICC’s discretionary “reasonable costs” standard and the High Court’s structured costs guidelines. The Court’s reasoning suggests that Appendix G guidance retains relevance as a benchmark for reasonableness, even if the SICC is not bound to apply it mechanically. This helps ensure consistency across procedural pathways and reduces the risk of arbitrary cost outcomes driven solely by transfer timing.
For lawyers and law students, the decision is also useful as an example of how appellate courts approach interpretation of transfer orders and how they reconcile procedural flexibility with fairness and predictability. When advising clients, counsel should now be able to argue more persuasively that Appendix G should inform costs assessment in transferred cases, particularly for costs incurred before transfer, and that complete disregard of Appendix G is likely to be an error of principle.
Legislation Referenced
- International Arbitration Act (Cap 143A): 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); Order 59; Order 110 r 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 (21 June 2021) (“Merits appeal decision”)
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.