Case Details
- 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 Title: CBX & Anor v CBZ & 2 Ors
- Civil Appeal No: 197 of 2020
- Related Appeal: CA/CA 136/2020 (appeal against the Merits Judgment)
- Originating Application: Originating Summons No 1 of 2020 (in the matters of s 24 of the International Arbitration Act and Articles 34(2)(a) and 34(2)(b) of the UNCITRAL Model Law)
- High Court Originating Action: HC/OS 1388/2019 (filed 5 November 2019)
- SICC Re-designation: SIC/OS 1/2020
- Parties: Appellants/Plaintiffs: CBX and CBY; Respondents/Defendants: CBZ, CCA and CCB
- Procedural Posture: Appeal against the SICC Judge’s Costs Judgment following transfer from the High Court to the SICC
- Arbitral Context: ICC International Court of Arbitration Partial Awards (5 June 2019; clarified 5 August 2019) and consolidated Final Award (Costs) dated 9 August 2019
- Statute(s) Referenced: International Arbitration Act (Cap 143A)
- Rules of Court Referenced: Order 69A rule 2(1)(d) (Cap 322, R5, 2014 Rev Ed); Order 59 (High Court costs); Order 110 r 46 (SICC costs)
- UNCITRAL Model Law: Articles 34(2)(a) and 34(2)(b)
- Key Prior Decisions in the Same Litigation: 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
- 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 setting-aside application under the International Arbitration Act is transferred from the High Court to the Singapore International Commercial Court (SICC). The case is particularly significant because it clarifies how the Supreme Court’s “Appendix G” guidelines for party-and-party costs interact with the SICC’s more flexible statutory and procedural framework for “reasonable costs”.
The Court of Appeal held that the SICC Judge had not erred in principle in the way he treated Appendix G when assessing costs after transfer. Although the Court reversed the earlier merits outcome (meaning the Buyers became the successful parties), it still examined the costs assessment in detail because the Buyers’ appeal against costs raised broader issues about the correct approach to costs methodology in transferred cases. Ultimately, the Court set aside the SICC’s costs order because the underlying basis for the costs award no longer held, but it also provided guidance on the proper interpretation of the transfer order and the role of Appendix G in determining “reasonable costs”.
What Were the Facts of This Case?
The dispute arose from two ICC arbitrations. In each arbitration, the Sellers (CBZ and related parties) obtained Partial Awards against the Buyers (CBX and CBY). The Buyers then filed setting-aside proceedings in Singapore, seeking to challenge parts of the Partial Awards and a consolidated costs award. The setting-aside proceedings were brought in the High Court as HC/OS 1388/2019 on 5 November 2019.
While the proceedings were pending, the High Court ordered, on its own motion, that the setting-aside proceedings be transferred to the SICC. The transfer was made on 14 February 2020. Importantly, the Deputy Registrar’s transfer orders 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 the assessment of costs “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”, because it effectively left the costs methodology question to the SICC.
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. Thereafter, four further affidavits were filed and written submissions were exchanged. The SICC Judge heard the matter over several hours on 15 June 2020 and delivered the Merits Judgment on 16 July 2020, dismissing the Buyers’ setting-aside applications and ordering the parties to submit agreed directions for costs.
A subsequent costs hearing led to the Costs Judgment dated 8 October 2020. The SICC 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 SICC’s approach to quantum was grounded in the premise that the Sellers had prevailed in the setting-aside applications, and therefore should recover their costs. The Buyers appealed both the merits and costs.
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 principled and concerned the correct costs regime to apply in a transferred case: (a) whether the SICC Judge erred in holding that Appendix G would not apply at least to costs incurred before transfer; and (b) whether the SICC Judge erred in disregarding Appendix G guidance when assessing costs incurred after transfer.
The third issue concerned the discretionary assessment of quantum: (c) whether the SICC Judge erred in finding that the $150,000 all-in sum was “reasonable” in the circumstances. The Court of Appeal treated the first two issues as questions of legal principle and the third as an exercise of discretion, but it also recognised that the legal framework for “reasonable costs” necessarily informs how discretion should be exercised.
Although the Court of Appeal ultimately reversed the merits outcome in the related appeal (CA/CA 136/2020), it still addressed the costs methodology issues because the Buyers’ costs appeal was not merely derivative of the merits. The Buyers argued that even if the merits outcome were not determinative, there was a basis for the appellate court to interfere with the SICC’s costs assessment substantially.
How Did the Court Analyse the Issues?
The Court of Appeal began by setting out the applicable costs regimes. Costs in High Court proceedings are governed by Order 59 of the Rules of Court, while costs in SICC proceedings are governed by Order 110 r 46. In addition, the Supreme Court’s “Guidelines for Party-and-Party Costs Awards in the Supreme Court of Singapore” (commonly referred to as “Appendix G”) provide ranges and methodology for costs awards in specified types of proceedings. For contentious originating summonses heard in the High Court, Appendix G generally indicates a range of $12,000 to $20,000 per hearing day, subject to factors such as whether there is cross-examination and the transcription service used.
The Court emphasised that Appendix G is not binding in the strict sense; judges may depart from the range where appropriate. However, the guidelines are intended to provide a structured starting point and a measure of consistency. The Court also noted the practical concern that arises when a case begins in the High Court (and therefore falls within Appendix G’s guidance) but is then transferred to the SICC. In such circumstances, the losing party may lose the benefit of Appendix G’s structured ranges, because the SICC’s framework is less prescriptive.
Under Order 110 r 46, the general rule is that the successful party must be paid the “reasonable costs” of the application or proceedings, unless the court orders otherwise. This shifts the inquiry from a more formulaic scale to a broader assessment of reasonableness, guided by multiple factors. The Court observed that “reasonable” may depend on considerations beyond the type of proceeding and hearing days, including the complexity of the matter, the time spent, and the nature of the work done, though those factors remain relevant.
Turning to the first two issues, the Court analysed the interpretation of the Appendix G order made at the time of transfer. The parties had accepted that the question was to be resolved by interpreting the transfer order. The Sellers’ position was that the order left it to the SICC Judge to determine the extent to which Appendix G should apply to pre- and post-transfer costs. The Buyers argued for a narrower interpretation: they relied on the wording of the Appendix G order and compared it with an “equivalent” order in BYL and another v BYN [2020] 4 SLR 204 (“BYL (Costs)”). In BYL (Costs), the order referred to “costs in respect of all proceedings”, whereas the Appendix G order here omitted the word “all”. The Buyers contended that this omission meant the Deputy Registrar had only left the SICC Judge to decide whether Appendix G applied to post-transfer costs, not pre-transfer costs.
The SICC Judge rejected the Buyers’ reading. The Court of Appeal agreed with the SICC Judge’s approach. While the absence of the word “all” created ambiguity and made the Buyers’ construction “plausible”, the Court held that the intended effect of the Appendix G order was the same as in BYL (Costs): it was for the SICC to decide whether Appendix G should apply to both pre- and post-transfer costs. The Court reasoned that, given the parties’ sharp disagreement at the transfer stage about the costs implications of transfer, it was more logical that the Deputy Registrar would have left the question to the SICC Judge rather than segment it in the manner suggested by the Buyers.
On the second issue, the Court addressed the Buyers’ complaint that the SICC Judge disregarded Appendix G guidance when assessing costs incurred after transfer. The Court’s analysis proceeded from the legal principle that SICC costs are governed by the “reasonable costs” framework under Order 110 r 46. Appendix G may inform the reasonableness assessment, but it does not control it. The Court therefore treated the SICC Judge’s approach as an exercise of discretion within the correct legal framework, rather than an error of principle.
Finally, although the Court of Appeal reversed the merits outcome in the related appeal, it still considered the costs appeal because the Buyers had mounted a principled challenge to the costs methodology. The Court’s ultimate conclusion on the costs order, however, turned on the fact that the basis for the SICC’s costs award had changed: the Buyers were now the successful parties. This meant the costs order could not stand.
What Was the Outcome?
The Court of Appeal reversed the SICC’s costs order. Since the Court had earlier reversed the merits decision and set aside the arbitral awards, the Buyers became the successful parties in the setting-aside proceedings. As a result, the premise underlying the SICC Judge’s costs award—that the Sellers prevailed—no longer held.
Accordingly, the Court set aside the $150,000 all-in costs order (with interest) made by the SICC Judge. The practical effect is that the Sellers could not retain the costs award, and the costs position would need to be reconsidered consistently with the new merits outcome and the correct costs regime for transferred proceedings.
Why Does This Case Matter?
CBX & Anor v CBZ & 2 Ors is important for practitioners because it clarifies how costs guidelines and costs regimes operate in the distinctive procedural setting of a transfer from the High Court to the SICC. Many international arbitration-related disputes begin in the High Court but are later transferred to the SICC for reasons of international commercial context, expertise, or case management. Costs consequences can be significant, and parties often litigate the “costs methodology” question as vigorously as the merits.
The decision confirms that, where a transfer order reserves the costs question to the SICC, the SICC may decide whether Appendix G applies to both pre- and post-transfer costs. It also reinforces that SICC costs are fundamentally governed by the “reasonable costs” standard under Order 110 r 46, with Appendix G functioning as guidance rather than a controlling tariff. This matters for both counsel and litigants when advising on litigation risk and settlement leverage.
From a precedent perspective, the case provides a structured approach to interpreting transfer orders and to reconciling High Court costs guidelines with the SICC’s more flexible costs framework. It also illustrates that even where a merits reversal determines who is “successful”, appellate courts may still address the methodology arguments to provide guidance for future cases.
Legislation Referenced
- International Arbitration Act (Cap 143A), s 24
- UNCITRAL Model Law on International Commercial Arbitration, Articles 34(2)(a) and 34(2)(b)
- Rules of Court (Cap 322, R5, 2014 Rev Ed): Order 69A rule 2(1)(d)
- Rules of Court: Order 59 (High Court costs)
- Rules of Court: Order 110 r 46 (SICC costs)
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)
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.