Case Details
- Citation: [2022] SGHC 26
- Title: EFG Bank AG, Singapore Branch v Surewin Worldwide Ltd and others
- Court: High Court of the Republic of Singapore (General Division)
- Suit No: Suit No 732 of 2016
- Date of Judgment: 31 January 2022
- Judgment Reserved / Date of Hearing: Judgment reserved; heard on 10 and 20 December 2021
- Judge: Vinodh Coomaraswamy J
- Plaintiff/Applicant: EFG Bank AG, Singapore Branch
- Defendants/Respondents: (1) Surewin Worldwide Ltd; (2) Singfor Life Insurance Co Ltd; (3) EFG Wealth Solutions (Singapore) Ltd
- Procedural Note: The first defendant was defunct and took no part in the action and filed no submissions on costs.
- Legal Area: Civil Procedure — Costs
- Key Prior Related Decision: EFG Bank AG, Singapore Branch v Surewin Worldwide [2021] SGHC 227 (“EFG v Surewin”)
- Statutes Referenced: Rules of Court (2014 Rev Ed) — Order 59 rule 6A (as referenced in the extract)
- Cases Cited (as provided): [2020] SGHC 140; [2021] SGHC 227; [2022] SGHC 26
- Judgment Length: 16 pages, 4,031 words
Summary
EFG Bank AG, Singapore Branch v Surewin Worldwide Ltd and others [2022] SGHC 26 is a High Court decision dealing solely with costs following an earlier substantive judgment in the same dispute. The court had previously upheld the plaintiff bank’s security interest in a fund held by the third defendant as trustee for the second defendant. After that liability decision, the parties returned to court to argue the appropriate costs order, including whether the plaintiff should be deprived of part of its costs because it lost on certain subsidiary issues.
The High Court (Vinodh Coomaraswamy J) reaffirmed the orthodox principle that costs follow the event: because the event went against the second defendant and in favour of the plaintiff, the second defendant was liable for the plaintiff’s costs. The court also held that the costs should be assessed on the standard basis (not indemnity), fixed by the court rather than taxed, and that the case’s complexity justified a departure from the Supreme Court Practice Directions’ Costs Guidelines in Appendix G. Importantly, the court rejected an attempt to “slice” the litigation into subsidiary issues for the purpose of depriving the successful party of costs under O 59 r 6A of the Rules of Court.
What Were the Facts of This Case?
The underlying dispute concerned the plaintiff bank’s asserted security interest over assets held through a structured arrangement involving a trustee and a unit trust. The third defendant held a fund as trustee for the second defendant. In the earlier decision, EFG v Surewin [2021] SGHC 227, the court upheld the plaintiff’s security interest, meaning that the plaintiff succeeded in establishing its entitlement against the competing beneficial interests asserted by the second defendant.
After the substantive judgment, the parties proceeded to costs submissions. The first defendant was defunct and did not participate. The costs contest therefore primarily involved the plaintiff and the second defendant, with the third defendant also making submissions. The court emphasised that this costs judgment should be read together with the earlier liability judgment, because the costs analysis depended on how the litigation unfolded and which issues were won or lost.
In the costs phase, the plaintiff sought a total of $588,500 for work done up to the filing of its costs schedule, plus additional amounts for interlocutory matters and further work after the schedule was filed. The plaintiff’s starting point was $555,000 disclosed in its costs schedule as the figure it considered reasonable for costs reasonably incurred if it succeeded. The plaintiff then added $13,500 for interlocutory matters where costs were ordered to be “in the cause”, and $20,000 for work done after filing the costs schedule.
The court also considered the scale and complexity of the litigation. The amount at stake was US$194m, which the court treated as a relevant indicator of the importance of the dispute and the likely time and labour reasonably expended by the parties. The documentary burden was substantial: the agreed bundle comprised over 60 volumes and more than 35,000 pages. The court further noted that the action raised novel and complex issues of foreign law (including Taiwanese law and Jersey law), as well as Singapore law, particularly in relation to foreign illegality and the effect of foreign proceedings and awards.
What Were the Key Legal Issues?
The costs judgment turned on several interrelated legal questions. First, the court had to determine who should bear the costs of the action. This required applying the “costs follow the event” principle: where the plaintiff succeeds, the default position is that the defendant who lost should pay the plaintiff’s costs.
Second, the court had to decide the appropriate basis and method of assessment. The plaintiff and second defendant agreed on four points of principle: (i) costs should be payable by the second defendant; (ii) the costs should be assessed on the standard basis; (iii) costs should be fixed by the court rather than taxed; and (iv) the case’s complexity warranted a departure from Appendix G of the Supreme Court Practice Directions. The court accepted these principles and then applied them to the quantum.
Third, and most significantly, the court had to address whether the second defendant could rely on O 59 r 6A of the Rules of Court to deprive the successful plaintiff of part of its costs. The second defendant’s argument was that although the plaintiff succeeded on three broad issues, it lost on multiple subsidiary issues contained within those broad issues. The second defendant contended that this should trigger the court’s discretion to reduce costs because the plaintiff had unnecessarily or unreasonably protracted the proceedings or added to their costs or complexity.
How Did the Court Analyse the Issues?
The court began by identifying the four points of principle that were common ground between the plaintiff and the second defendant. It then stated that even if those points were not agreed, it would have reached the same conclusions. The court therefore proceeded on the footing that costs should follow the event, be assessed on the standard basis, be fixed by the court, and be assessed with a departure from Appendix G due to the case’s complexity.
On quantum, the court treated the plaintiff’s costs schedule as the starting point. The plaintiff had disclosed $555,000 as the reasonable amount for costs reasonably incurred up to the filing of the costs schedule. The court then evaluated whether that figure was reasonable by reference to several considerations. The first was the amount at stake: US$194m. The court explained that the greater the amount at stake, the greater the importance of the dispute and, consequently, the time and labour that parties can reasonably be expected to expend. It also linked this to proportionality, noting that the claimed costs were about 0.2% of the amount at stake, which was not disproportionate.
However, the court cautioned against treating proportionality as a mere mathematical exercise. Even if costs are proportionate to the amount at stake, they may still be unreasonably incurred. The “touchstone” remained reasonableness. This approach reflects a consistent costs jurisprudence: proportionality is relevant, but it does not automatically determine recoverability.
The second consideration was the maximum figure the plaintiff might recover if the court did not depart from Appendix G. The court classified the case as an equity and trusts claim (rather than a commercial claim), accepted that two counted trial days were actually half days, and concluded that the trial was effectively 11 days. It then compared the plaintiff’s claimed costs to the maximum figure that would have been yielded by the most complex equity and trusts claim where the court declined to depart from Appendix G, which was $301,000. The plaintiff’s claim was just over 190% of that maximum. The court nevertheless considered the variance reasonable given the complexity and novelty of the issues, including foreign illegality questions and the effect of foreign arbitral and court decisions.
The court’s reasoning on complexity was particularly important. It identified that the action raised novel and complex issues of Taiwanese law and Jersey law, as well as Singapore law, especially in light of Teng Wen-Chung v EFG [2018] 2 SLR 1145 (as referenced in the extract). It also addressed whether a Taiwanese arbitration award could give rise to an issue estoppel under Singapore law, requiring analysis not only of the award but also of subsequent decisions by the Taiwanese court and a Hong Kong court’s decision not to enforce the award. The court also highlighted the voluminous documentary record, which justified substantial time and labour.
The third consideration was comparative reasonableness using the second defendant’s own costs schedule. The second defendant had set out $700,000 as the reasonable amount it would consider itself entitled to recover if it had succeeded. The court observed that the nature of the action meant that both pursuing and defending the claim involved broadly similar time, labour, care, and attention. Against that backdrop, the plaintiff’s claimed costs appeared reasonable. The court therefore did not accept the second defendant’s attempt to reduce the plaintiff’s recovery by reference to a “50%” argument.
That “50%” argument was grounded in O 59 r 6A. The second defendant submitted that the plaintiff should be deprived of 50% of its costs because it chose to contest issues on which it lost and the second defendant won. The court rejected this approach as misconceived. It held that O 59 r 6A does not entitle a defendant to divide each broad issue into multiple subsidiary issues and treat each subsidiary issue as a separate “event” for costs purposes. In other words, the mere fact that the successful party loses on subsidiary points does not automatically engage the discretion to deprive costs.
Crucially, the court explained that O 59 r 6A is engaged only if the successful party fails on a particular subsidiary issue and has thereby unnecessarily or unreasonably protracted the proceedings, or added to costs or complexity. The court’s analysis indicates a principled approach: the discretion is not triggered by outcome at the micro-level (subsidiary issues) but by whether the conduct in pursuing those issues was unreasonable in the relevant sense. The court therefore maintained the “successful party” baseline and required a more substantive showing than the second defendant’s “subsidiary issue slicing” method.
Although the extract truncates the remainder of the judgment, the reasoning visible in the provided text demonstrates the court’s method: it assessed reasonableness through proportionality, comparison to Appendix G maxima, and cross-checking against the opposing party’s own costs expectations; and it treated O 59 r 6A as a targeted discretion requiring a causal link between the failed subsidiary issue and unnecessary or unreasonable protraction or added complexity.
What Was the Outcome?
The court accepted that the second defendant was liable for the plaintiff’s costs and that those costs should be assessed on the standard basis and fixed by the court. It also accepted that the case’s complexity justified departing from Appendix G. The court further rejected the second defendant’s attempt to reduce costs by applying O 59 r 6A on the basis that the plaintiff lost on subsidiary issues within broader issues on which it succeeded.
Practically, the decision confirms that where a party succeeds overall, it should not be penalised for losing discrete sub-issues unless the defendant can show that the pursuit of those sub-issues was unnecessarily or unreasonably protracted or added to costs or complexity. The outcome therefore preserves the default “costs follow the event” principle while still allowing for targeted reductions in appropriate cases under O 59 r 6A.
Why Does This Case Matter?
This decision is significant for Singapore costs practice because it clarifies how O 59 r 6A should be applied in a structured litigation where issues are complex and layered. The court’s rejection of the “subsidiary issue slicing” approach provides useful guidance for both plaintiffs and defendants: a defendant cannot automatically obtain a costs reduction merely by identifying that the plaintiff lost on some sub-issues. Instead, the defendant must demonstrate that the successful party’s conduct in pursuing those sub-issues crossed the threshold of unnecessary or unreasonable protraction or added complexity.
For practitioners, the judgment also illustrates a robust framework for assessing reasonableness of costs in high-stakes, foreign-law-heavy disputes. The court’s approach—considering the amount at stake, proportionality (without treating it as determinative), comparison to Appendix G maxima, and cross-checking against the opposing party’s own costs schedule—offers a practical template for costs submissions. It also underscores the importance of presenting a coherent narrative of complexity and labour, especially where the dispute involves foreign illegality, issue estoppel, and the effect of foreign arbitral and court decisions.
Finally, the case reinforces the value of early and accurate costs scheduling. The court treated the plaintiff’s disclosed figure in its costs schedule as the starting point and then examined additions carefully. This highlights that costs submissions should be grounded in contemporaneous disclosure and supported by reasoned justification, particularly where departures from Appendix G are sought.
Legislation Referenced
- Rules of Court (2014 Rev Ed) — Order 59 rule 6A
Cases Cited
- Teng Wen-Chung v EFG [2018] 2 SLR 1145
- EFG Bank AG, Singapore Branch v Surewin Worldwide [2021] SGHC 227
- [2020] SGHC 140
- [2021] SGHC 227
- [2022] SGHC 26
Source Documents
This article analyses [2022] SGHC 26 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.