Case Details
- Citation: [2001] SGCA 67
- Title: Ho Kon Kim v Lim Gek Kim Betsy and another appeal and Others
- Court: Court of Appeal of the Republic of Singapore
- Date of Decision: 12 October 2001
- Case Numbers: CA 164/2000, CA 167/2000
- Coram: Chao Hick Tin JA; L P Thean JA; Yong Pung How CJ
- Judges: Chao Hick Tin JA, L P Thean JA, Yong Pung How CJ
- Plaintiff/Applicant: Ho Kon Kim
- Defendant/Respondent: Lim Gek Kim Betsy and another appeal and Others
- Legal Area: Civil Procedure — Costs
- Key Topics: Apportionment of costs; usual order against two or more unsuccessful parties; joint and several liability; discretion on costs; depriving successful party of costs; consequential orders
- Counsel (CA 164/2000 and CA 167/2000): Michael Khoo SC and Josephine Low (Michael Khoo & Partners) for the appellant in CA 164/2000 and the first respondent in CA 167/2000; M Amaladass, Sivakolunthu and Gn Chiang Soon (M Dass & Co) for the first respondent in CA 164/2000 and the second respondent in CA 167/2000; Leslie Chew SC, Lionel Tay and Esther Ling (Khattar Wong & Partners) for the third respondent in CA 164/2000 and the Fourth respondent in CA 167/2000; CR Rajah SC and Chew Kei-Jin (Tan Rajah & Cheah) for the first and second appellants in CA 167/2000; Tan Kok Quan SC and Chia Boon Teck (Tan Kok Quan Partnership) for the third respondent in CA 167/2000
- Judgment Length: 5 pages, 2,576 words (as indicated in metadata)
- Statutes Referenced: Not specified in the provided extract
- Cases Cited (as reflected in extract): [2001] SGCA 67 (self-citation in metadata); Re Elgindata (No. 2) [1993] 1 All ER 232; Tullio v Maoro [1994] 2 SLR 489; Bostock v Ramsey Urban District Council [1900] 2 QB 616; Lee Seng Choon Ronnie v Singapore Island Country Club [1993] 2 SLR 456; Harnett v Vise 5 Ex D 307
Summary
Ho Kon Kim v Lim Gek Kim Betsy and another appeal and Others [2001] SGCA 67 is a Court of Appeal decision concerned primarily with consequential orders and, crucially, the allocation of costs following an earlier substantive judgment delivered on 26 September 2001. After the court’s earlier decision, the parties were invited to make written submissions on what further orders should be made and how costs should be dealt with both on appeal and below.
The Court of Appeal declined to make certain consequential orders sought by the successful party’s side, holding that there was no justification for directing a mortgagee in possession to take steps that would, in effect, require it to perform obligations it had not agreed to undertake. The court also refused to entertain “extraordinary” arguments that attempted to disturb costs orders that had not been appealed. In relation to costs, the court reaffirmed that costs are discretionary and that, while the usual rule is that costs follow the event, the court may depart from that rule where the circumstances justify it, including by considering conduct leading up to the litigation.
What Were the Facts of This Case?
The litigation arose out of a property transaction involving multiple parties and subsequent disputes concerning interests in the property and the mortgagee’s position. The Court of Appeal’s later decision (dated 12 October 2001) is not the first word on the merits; rather, it is a follow-up decision dealing with consequential orders and costs after the court had already delivered its substantive judgment on 26 September 2001. The present decision therefore assumes the correctness of the earlier findings and focuses on implementation and financial consequences.
In Civil Appeal No. 164 of 2000, the applicant, Madam Ho (Ho Kon Kim), sought further consequential orders. One such request was directed at RHB, described as the mortgagee in possession. Madam Ho asked that RHB, at its own costs and expense, apply to the relevant authorities for approval to subdivide the property into three subdivided lots, and then transfer a particular subdivided lot (plot 3) to Madam Ho without payment and free from encumbrances. The Court of Appeal rejected this request, reasoning that RHB had not agreed to be bound by the obligations that another party (Ms Lim) had undertaken under the sale agreement. The court emphasised that compelling RHB to take those steps would effectively require RHB to perform part of Ms Lim’s obligations, which RHB had never agreed to perform.
The decision also addresses the costs consequences of the proceedings involving WLAW. Madam Ho had joined WLAW as a second respondent in the appeal, but the Court of Appeal noted that she did not appeal against the trial judge’s order dismissing her claim against WLAW with costs. Despite this, her solicitors advanced submissions seeking to deprive WLAW of costs below or to obtain orders akin to Sanderson or Bullock relief. The Court of Appeal treated these submissions as procedurally and substantively untenable because the costs order stood unchallenged.
In addition, RHB sought a stay of the costs order on the basis that it intended to initiate an action against WLAW for breach of duty and/or negligence by a named individual (Ms Leong). The Court of Appeal rejected the stay application as unsustainable, holding that the existence or proposed existence of other proceedings is not a ground to stay an order for costs. RHB also requested apportionment of costs so that RHB and Ms Lim would each bear only 50%. The Court of Appeal refused, pointing out that the earlier order was joint and several against both parties, and that contribution rights could be pursued between them. The fact that Ms Lim was bankrupt was not a basis for varying the order.
Finally, the court dealt with “outgoings of the property” during the period pending sale. RHB sought an order that Madam Ho bear one third of the reasonably incurred outgoings, including property tax, from the date RHB took possession. The Court of Appeal agreed to this consequential adjustment, reflecting a practical allocation of ongoing costs associated with maintaining the property.
What Were the Key Legal Issues?
The first key issue was the scope of the Court of Appeal’s power to make further consequential orders after its substantive decision. Specifically, the court had to decide whether it was appropriate to direct the mortgagee in possession (RHB) to take steps—subdivision and transfer of a specific plot—at RHB’s own expense and without payment, in a manner that would effectively bind RHB to obligations under a sale agreement to which it had not consented.
The second issue concerned costs: whether the Court of Appeal could entertain arguments that sought to deprive a successful party (WLAW) of costs below or to obtain special costs orders, despite the fact that the applicant had not appealed against the trial judge’s costs order dismissing her claim against WLAW. This required the court to consider procedural finality and the limits of what can be revisited in a subsequent costs determination.
The third issue related to the discretion on costs and the circumstances that justify departing from the usual rule that costs follow the event. In Civil Appeal No. 167 of 2000, the court had to decide whether the appellants, though successful in obtaining certain outcomes, should nevertheless be deprived of costs due to their conduct and the conduct of their representatives leading up to and during the litigation.
How Did the Court Analyse the Issues?
On consequential orders, the Court of Appeal adopted a principled approach grounded in contractual and equitable boundaries. The court accepted that RHB, when taking the mortgage, recognised Madam Ho’s interest and agreed to be bound by that interest. However, the court drew a clear distinction between recognising and being bound by Madam Ho’s interest, on the one hand, and being bound by what Ms Lim had agreed to do under the sale agreement, on the other. The court held that directing RHB to apply for subdivision and then transfer plot 3 without payment and free from encumbrances would, in substance, require RHB to perform part of Ms Lim’s obligations. Since RHB had never agreed to those obligations—either in the mortgage or in a regulating agreement—the court found “no justification” for the order.
In reaching this conclusion, the court also addressed the practical concern that Madam Ho might not be able to recoup her loss fully. The court did not deny that possibility; instead, it emphasised that Madam Ho was not without remedy. The court’s reasoning suggests that consequential orders must be tethered to legal obligations and consent, and that where a party’s loss arises from another party’s undertakings, the remedy lies against the relevant party or parties rather than by imposing performance obligations on a non-consenting mortgagee.
Turning to costs in Civil Appeal No. 164 of 2000, the court treated the procedural posture as decisive. Madam Ho’s solicitors advanced an “extraordinary argument” that WLAW should be deprived of costs below, or alternatively that a Sanderson order or a Bullock order should be made in her favour. The Court of Appeal refused to entertain the argument because Madam Ho had not appealed against the trial judge’s order dismissing her claim against WLAW with costs. The court stated that the obstacle was insurmountable: the order stood and was not affected by the Court of Appeal’s later judgment. This reflects a strong commitment to finality and to the principle that costs orders are not to be re-litigated indirectly when they have not been challenged on appeal.
However, the court did make a further costs order in relation to WLAW’s costs in the appeal itself. The court noted that WLAW apparently did not know Madam Ho was not pursuing her appeal against WLAW until around 18 June 2001, when the Case for the Appellant was served. The Court of Appeal agreed that WLAW was entitled to costs incurred in the appeal up to that date. This demonstrates a nuanced approach: while the court would not disturb the trial judge’s costs order, it could still allocate appeal costs based on when the parties became aware of the scope of the appeal.
As for RHB’s application for a stay of the costs order, the court rejected it as “totally unsustainable.” The court reasoned that even if RHB intended to pursue a claim against WLAW for breach of duty or negligence, that would not justify staying the existing costs order. The court’s view was that the existence of other proceedings is not a ground for a stay of costs. This is consistent with the general policy that costs orders should not be delayed merely because a party is exploring additional litigation.
RHB’s request for apportionment of costs equally between RHB and Ms Lim was also refused. The Court of Appeal relied on the earlier order made in its substantive judgment, which was against the two parties jointly and severally. Under such an order, either or both parties may be required to bear and pay the costs, and the party who pays may seek contribution from the other. The court held that Ms Lim’s bankruptcy did not justify varying the order. This is an important point for practitioners: the court will not rewrite a joint and several costs order based on the practical difficulty of obtaining contribution, because the legal structure of liability remains the same.
Finally, in Civil Appeal No. 167 of 2000, the Court of Appeal addressed the discretion on costs and the circumstances that can justify departure from the “costs follow the event” rule. The court restated general principles: costs are in the discretion of the court, and the default is that costs follow the event unless some other order is warranted. The court cited authorities including Re Elgindata (No. 2) and Tullio v Maoro. It further held that the court may look at all circumstances, including matters that led to the litigation, not merely conduct during the proceedings.
In support of this broader inquiry, the court referred to Bostock v Ramsey Urban District Council, where the successful defendant was deprived of costs because the plaintiff had been induced to commence the action by the defendant’s prior conduct. The Court of Appeal also cited Lee Seng Choon Ronnie v Singapore Island Country Club, where the appellant succeeded but was deprived of costs due to deplorable conduct. The court’s reasoning indicates that “success” on the merits does not automatically entitle a party to costs if the court concludes that the party’s conduct (including pre-litigation conduct) makes a different costs order appropriate.
What Was the Outcome?
In Civil Appeal No. 164 of 2000, the Court of Appeal refused to grant the requested consequential order compelling RHB to subdivide and transfer plot 3 at RHB’s own expense and without payment. It also refused to entertain arguments seeking to deprive WLAW of costs below because Madam Ho had not appealed against the trial judge’s costs order. The court ordered that WLAW was entitled to its costs in the appeal up to 18 June 2001, when Madam Ho’s solicitors served the Case for the Appellant indicating that the appeal against WLAW was not being pursued.
Further, the court rejected RHB’s request for a stay of the costs order and refused to apportion costs equally between RHB and Ms Lim, maintaining the joint and several structure of liability. The court did, however, grant a consequential order on outgoings: pending the sale of the property, outgoings reasonably incurred by RHB (including property tax) would be apportioned two-thirds to RHB and one-third to Madam Ho, with an account to be taken of the outgoings reasonably incurred by RHB. The court also made consequential directions regarding sale of the property and liberty to apply to the High Court for directions.
Why Does This Case Matter?
This decision is a useful authority on the practical limits of consequential orders and on the relationship between substantive rights and procedural remedies. For mortgagees and parties involved in property transactions, the case underscores that courts will not impose performance obligations on a mortgagee in possession that go beyond what the mortgagee agreed to undertake. Even where a party has an interest in the property and may suffer loss, the court will generally require that remedies be directed to the parties who actually undertook the relevant obligations.
From a costs perspective, Ho Kon Kim v Lim Gek Kim Betsy is particularly valuable for practitioners because it illustrates both procedural finality and substantive discretion. The court’s refusal to revisit costs below where no appeal was taken against the relevant order demonstrates that costs determinations are not infinitely revisitable. At the same time, the court’s willingness to allocate appeal costs based on when the opposing party became aware of the scope of the appeal shows that the court will tailor costs outcomes to fairness and timing.
Finally, the case reinforces that “costs follow the event” is not absolute. The Court of Appeal’s discussion of authorities such as Bostock and Lee Seng Choon Ronnie confirms that courts may deprive a successful party of costs where conduct—potentially including pre-litigation conduct—justifies a departure. This has direct implications for litigation strategy and settlement posture: counsel must consider not only the merits but also how conduct may be characterised when costs are assessed.
Legislation Referenced
- Order 59 rule 8 (as referenced in the extract in relation to proceedings and costs in Civil Appeal No. 167 of 2000)
Cases Cited
- Re Elgindata (No. 2) [1993] 1 All ER 232
- Tullio v Maoro [1994] 2 SLR 489
- Bostock v Ramsey Urban District Council [1900] 2 QB 616
- Harnett v Vise 5 Ex D 307
- Lee Seng Choon Ronnie v Singapore Island Country Club [1993] 2 SLR 456
Source Documents
This article analyses [2001] SGCA 67 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.