Case Details
- Citation: [2023] SGHCF 30
- Title: WLL v WLM
- Court: High Court (Family Division)
- Division/Proceeding: Divorce Transferred No 4401 of 2021
- Date of Judgment: 23 June 2023
- Date of Hearing: 8 June 2023
- Judge: Choo Han Teck J
- Plaintiff/Applicant: WLL (the “Husband”)
- Defendant/Respondent: WLM (the “Wife”)
- Legal Area: Family Law — Procedure — Costs
- Statutes Referenced: Family Justice Rules 2014 (“FJR”) (not exhaustively specified in the extract)
- Key Procedural Rules Cited: r 446; r 454(1)(c); r 454(2); r 457(1); r 457(2); r 457(1)(7)
- Cases Cited: [2023] SGHCF 19; [2023] SGHCF 30 (this judgment); JBB v JBA [2015] 5 SLR 0153; Resorts World at Sentosa Pte Ltd v Goel Adesh Kumar and another appeal [2018] 2 SLR 1070
- Judgment Length: 7 pages, 1,908 words
- Representation: Trent Ng Yong En and Cheryl Tan Wee Tim (Kalco Law LLC) for the plaintiff; Tee Lee Lian and Julian Koh Zhen Yang (Bih Li & Lee LLP) for the defendant
Summary
WLL v WLM [2023] SGHCF 30 is a High Court (Family Division) decision dealing with costs following an ancillary matters judgment in a divorce. The court had earlier granted an interim judgment of divorce and then decided the division of matrimonial assets and maintenance. In the present judgment, the issue was whether the husband should be awarded costs—particularly indemnity costs—because he had made a formal offer to settle (“OTS”) under the Family Justice Rules 2014, and whether the final judgment obtained was “not less favourable” than the OTS.
The court accepted that the husband’s OTS was genuine and that the judgment sum for the wife’s share of matrimonial assets was not less favourable than the OTS when the relevant terms were considered. Although the wife argued that the OTS was less favourable in practical terms due to timelines for moving out of the matrimonial home, the judge held that the difference in settlement quantum sufficiently compensated for any additional burdens arising from the timelines. Exercising discretion under the FJR, the court nonetheless awarded costs to the husband, but fixed them on a standard basis rather than indemnity basis, concluding that a full standard-basis assessment was fair in the circumstances.
What Were the Facts of This Case?
The husband and wife obtained an interim judgment of divorce on 16 February 2022. After the interim stage, the court heard ancillary matters, namely the division of matrimonial assets and maintenance for the wife. The judge delivered an earlier judgment on 3 April 2023 (WLL v WLM [2023] SGHCF 19), which ordered the husband to pay the wife $1,467,516.56 for the division of matrimonial assets. Notably, the court made no order for maintenance for the wife. The question of costs was reserved at that time, and the parties later made written submissions specifically on costs.
Central to the costs dispute was the husband’s OTS dated 29 August 2022. The OTS was served on the wife pursuant to r 446 of the FJR. The husband’s position was that the OTS remained open for acceptance without a deadline and was effectively available up to the delivery of the ancillary matters judgment on 3 April 2023. Under the OTS, the husband offered to pay the wife $1,840,000.00 in settlement of the division of matrimonial assets. The offer contemplated payment within three months from the date of the certificate of the final judgment of divorce.
When the court ultimately ordered payment of $1,467,516.56, the husband argued that the wife received $372,483.44 less than the amount offered in the OTS. On that basis, the husband sought costs from the date the OTS was made, relying on the FJR framework for costs consequences of offers to settle. He also sought a specific costs assessment: standard-basis costs for work done from 16 September 2021 to 29 August 2022; indemnity-basis costs from 29 August 2022 to 3 April 2023; and disbursements including costs in a specific interlocutory application for specific discovery (FC/SUM 2515/2022). The husband’s total figure for costs of the action was stated as $41,001.21.
The wife opposed any costs order. She accepted that the OTS offered a higher settlement quantum, but argued that the husband did not obtain a judgment “not less favourable” than the OTS when the other terms were taken into account. In particular, she contended that the OTS was less favourable regarding the timeline for moving out of the matrimonial home, because the parties were still residing there. She further pointed to her own counter-proposal: she had proposed that the husband pay $2,042,000 within three months from the date of the final judgment of divorce, and that the wife be given an additional three months from receipt of the settlement amount to move out of the matrimonial home.
What Were the Key Legal Issues?
The first key issue was whether the husband was entitled to costs under the FJR because he had made an OTS and obtained a judgment that was “not less favourable” than the terms of that offer. This required the court to compare the final judgment outcome with the OTS, including not only the settlement quantum but also relevant terms that could affect the practical position of the wife.
The second issue was the basis of costs—whether costs should be awarded on an indemnity basis (and from what date), or whether the court should instead award costs on a standard basis. Even if the FJR provides a structured entitlement where the statutory conditions are met, the court retains discretion, particularly in matrimonial proceedings where the policy is not to treat parties as “winners” and “losers” in the same way as in ordinary civil litigation.
Finally, the court had to consider whether the husband’s conduct in the proceedings should affect the costs order. The wife alleged failures in disclosure of assets, including an issue involving an affidavit that was sworn but not filed, and she also relied on the husband’s rejection of mediation as evidence of uncooperative conduct. These allegations were relevant to whether the court should temper or deny costs, or adjust the basis of costs.
How Did the Court Analyse the Issues?
The judge began by addressing the wife’s argument that the judgment was not “not less favourable” than the OTS because of timelines for moving out of the matrimonial home. The judge noted that the timeline issue was not argued at the earlier hearing on ancillary matters. The wife had not raised it as a point of dispute when the ancillary matters were decided, and the judge therefore treated the omission as not crucial in itself, but important for the record. The judge’s approach reflects a practical litigation principle: where a party does not contest a particular term or issue at the appropriate time, it becomes harder to reframe that omission later as a basis to defeat costs consequences.
On the merits of the comparison, the judge held that the difference in settlement quantum—over $300,000—adequately covered the wife for additional rental and moving-out costs according to the timelines prescribed under the OTS. In other words, even if the OTS provided a shorter timeline for the wife to vacate the matrimonial home, the higher settlement amount offered by the husband compensated for that practical disadvantage. The judge therefore concluded that the husband’s judgment was not less favourable than the OTS for the purposes of the FJR.
Having accepted the “not less favourable” comparison and the genuineness of the OTS, the judge then turned to discretion on costs. The court referenced r 457(2) and r 457(1), emphasising that any entitlement is subject to the court’s discretion. The judge also relied on r 457(1)(7), which gives the court full power to determine by whom and to what extent costs are to be paid notwithstanding the OTS. This is significant: even where the procedural conditions for costs consequences are satisfied, matrimonial proceedings require a more nuanced approach.
In developing that approach, the judge cited JBB v JBA [2015] 5 SLR 0153, where Debbie Ong JC (as she then was) explained that general costs principles must be applied with more sensitivity in matrimonial proceedings. Family courts often avoid a strict “winner/loser” framing, especially where the case is heard at first instance and the judgment is essentially a declaration of result rather than a determination of who prevails in the adversarial sense. The judge also noted that costs may be more acutely relevant where one party made a genuine attempt to settle under the FJR procedure; in such situations, awarding costs can incentivise settlement and reflect that legal costs could have been saved if the parties had adopted the non-litigious approach.
However, the judge cautioned that not every OTS warrants a favourable costs order. The OTS must be genuine and not made merely to obtain an adverse costs order. The judge referred to Resorts World at Sentosa Pte Ltd v Goel Adesh Kumar and another appeal [2018] 2 SLR 1070, which underscores that offers should not be tactical devices. Applying that principle, the judge found that the husband’s OTS was genuine. The judge pointed to correspondence showing an intention to resolve amicably, including multiple attempts to settle without contested applications. Although the OTS proposed a shorter timeline for moving out, the judge considered that a period of six weeks was not so unreasonable as to render the offer illusory or coercive.
With genuineness and “not less favourable” established, the judge assessed whether indemnity costs were appropriate. The judge considered the factors enumerated under r 457 of the FJR, including the existence of an offer to settle, the date of the offer, the terms of the offer, and the extent to which the judgment was more favourable than the offer. The OTS was served on 29 August 2022. After that, there were two exchanges of affidavits of assets and means, and the wife brought an additional application for specific discovery. These steps resulted in a further seven months before ancillary matters were resolved.
Although the husband’s judgment sum was more favourable for him than the OTS terms by $372,483.44, the judge addressed the wife’s attempt to attribute the difference to valuation fluctuations of the matrimonial home. The judge accepted that property market fluctuations could play a role, but identified another significant contributing factor: the judge’s rejection of the wife’s argument for an adverse inference against the husband, which would have resulted in a 10% uplift to the wife’s share. The judge estimated that this rejection accounted for a difference of approximately $900,000, given that total matrimonial assets were above $9 million. This reasoning suggests that the “not less favourable” comparison was not merely a matter of timing or valuation noise; it also reflected substantive adjudication of evidential and inference issues.
Turning to the wife’s allegations of uncooperative conduct, the judge acknowledged that the husband’s failure to disclose a portion of his assets was wrong. However, the judge characterised the non-disclosure as limited to trading accounts. The judge also considered the wife’s point about an affidavit sworn but not filed, but treated it as an error of counsel rather than a conduct that should necessarily deprive the husband of costs. Importantly, the judge found that the omission did not have material bearing on the outcome because the court had not drawn an adverse inference against the husband in any event. As for the rejection of mediation, the judge held that it was insufficient to justify a finding of unnecessary delay, particularly given the husband’s continual efforts to resolve the dispute amicably through private settlement. While the rejection of mediation could count in the costs calculus, it did not outweigh the other considerations.
Ultimately, the judge concluded that a standard-basis assessment for the entirety of the work done would be fair. Although the husband had sought indemnity costs from the date of the OTS, the judge’s discretion led to a more moderate outcome. This reflects the balancing act in matrimonial costs: the court recognises the settlement value of an OTS and the procedural fairness it promotes, but it also accounts for the overall conduct and the materiality of any procedural or disclosure errors.
What Was the Outcome?
The court fixed costs of the action at $25,000, inclusive of disbursements, to be paid by the wife to the husband. The judge declined to award indemnity costs and instead adopted a standard-basis approach for the whole period of work.
Practically, the decision means that while the husband succeeded in obtaining a costs order grounded in the FJR offer-to-settle framework, the wife’s arguments about the basis of costs and the husband’s conduct were sufficiently persuasive to prevent an indemnity costs award and to reduce the quantum of costs sought.
Why Does This Case Matter?
WLL v WLM [2023] SGHCF 30 is instructive for practitioners on how the FJR’s offer-to-settle regime operates in matrimonial ancillary proceedings, particularly where the dispute is not about liability but about the division of assets and related practical arrangements. The case demonstrates that courts will compare the OTS and the final judgment in a way that is sensitive to real-world consequences, but also that a party cannot easily reintroduce unargued issues at the costs stage to defeat the “not less favourable” requirement.
From a procedural strategy perspective, the decision highlights the importance of raising all relevant terms and disputes at the ancillary matters hearing. The judge’s observation that the timeline issue was not argued earlier underscores that costs outcomes may depend on what was actually contested and decided. For counsel, this means that if a party intends to rely on a particular term of an OTS (such as vacating timelines, payment mechanics, or other practical burdens), that term should be clearly pleaded and argued when the ancillary matters are determined.
Substantively, the case also reinforces the matrimonial costs policy articulated in JBB v JBA: family courts prefer not to create a rigid winner/loser narrative. Even where the FJR provides a structured basis for costs consequences, the court retains discretion and will calibrate the basis of costs (standard versus indemnity) by reference to genuineness of the offer, the extent of advantage gained, and the materiality of any alleged procedural misconduct. The decision therefore serves as a useful template for arguing both for and against indemnity costs in family proceedings following an OTS.
Legislation Referenced
- Family Justice Rules 2014 (FJR), including r 446, r 454(1)(c), r 454(2), r 457(1), r 457(2), and r 457(1)(7)
Cases Cited
- WLL v WLM [2023] SGHCF 19
- JBB v JBA [2015] 5 SLR 0153
- Resorts World at Sentosa Pte Ltd v Goel Adesh Kumar and another appeal [2018] 2 SLR 1070
Source Documents
This article analyses [2023] SGHCF 30 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.