Case Details
- Citation: [2023] SGHCF 30
- Title: WLL v WLM
- Court: High Court of the Republic of Singapore (Family Division)
- Division/Proceeding: General Division of the High Court (Family Division); Divorce Transferred No 4401 of 2021
- Date of Decision: 23 June 2023
- Judge: Choo Han Teck J
- Earlier Hearing Date (for ancillary matters): 8 June 2023
- Plaintiff/Applicant: WLL (the “Husband”)
- Defendant/Respondent: WLM (the “Wife”)
- Legal Area: Family Law — Procedure (Costs following offer to settle)
- Statutes/Rules Referenced: Family Justice Rules 2014 (“FJR”) (including r 446, r 454, r 457)
- Cases Cited: [2023] SGHCF 19; [2023] SGHCF 30 (this decision); 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, 1,852 words
- Representations: Trent Ng Yong En and Cheryl Tan Wee Tim (Kalco Law LLC) for the Husband; Tee Lee Lian and Julian Koh Zhen Yang (Bih Li & Lee LLP) for the Wife
Summary
WLL v WLM [2023] SGHCF 30 is a High Court (Family Division) decision dealing with costs in a divorce matter transferred from the Family Justice Courts. The court had earlier granted an interim judgment of divorce and decided ancillary matters, including the division of matrimonial assets. The remaining issue was costs, which had been reserved pending the parties’ written submissions.
The central procedural question was how costs should be dealt with where the Husband had made a formal offer to settle (“OTS”) under the Family Justice Rules 2014. The Husband argued that he should receive costs on an indemnity basis from the date the OTS was served, because the judgment obtained was not less favourable than the OTS. The Wife opposed, contending that although the settlement quantum was higher than the eventual judgment sum, the overall terms—particularly the timeline for moving out of the matrimonial home—meant the judgment was not “not less favourable” within the meaning of the relevant costs rule.
The court rejected the Wife’s argument and found that the judgment obtained was not less favourable than the OTS. It further held that the OTS was genuine rather than a tactical device to obtain an adverse costs order. However, despite entitlement to costs and the possibility of indemnity costs, the court fixed costs on a standard basis for the entirety of the work done, taking into account the Wife’s criticisms of the Husband’s conduct while also recognising that the non-disclosure was limited and did not materially affect the outcome.
What Were the Facts of This Case?
The parties, WLL (the “Husband”) and WLM (the “Wife”), obtained an interim judgment of divorce on 16 February 2022. After the interim judgment, the court heard ancillary matters, specifically the division of matrimonial assets and maintenance for the Wife. On 3 April 2023, the High Court delivered its judgment on those ancillary matters (see WLL v WLM [2023] SGHCF 19).
In the ancillary judgment, the court made no order for maintenance for the Wife. It ordered that the Husband pay the Wife $1,467,516.56 for the division of matrimonial assets. Importantly for the later costs decision, the court reserved the question of costs. This meant that the parties later had to address costs separately, after the substantive ancillary orders were determined.
Before the ancillary judgment, the Husband had made an offer to settle dated 29 August 2022. The OTS was served on the Wife and was made pursuant to r 446 of the Family Justice Rules 2014. The OTS proposed that the Husband would pay the Wife $1,840,000.00 in settlement of the division of matrimonial assets, within three months from the date of the certificate of the final judgment of divorce. The OTS had no deadline for acceptance and remained open until the judgment was delivered on 3 April 2023.
The Wife did not accept the OTS. In the ancillary judgment, the Wife ultimately received $1,467,516.56—meaning she received $372,483.44 less than the settlement quantum offered in the OTS. The Husband therefore sought costs on an indemnity basis from the time the OTS was made, relying on the costs consequences in the FJR. The Wife, in turn, applied for specific discovery, and the trial judge had reserved disbursements in that discovery application to be dealt with at the costs stage.
What Were the Key Legal Issues?
The first key issue was whether the judgment obtained by the Husband was “not less favourable” than the terms of the OTS, as required for the Husband to obtain the enhanced costs consequences under the FJR. The Wife’s position was that, although the OTS offered a higher settlement amount, the OTS was less favourable in other respects—particularly the timeline for the Wife to move out of the matrimonial home.
Related to this was the question of how the court should compare the OTS and the eventual judgment when the OTS contains multiple terms. The Wife argued that the court should consider the overall package of terms, not merely the settlement quantum. She suggested that the OTS imposed a shorter time for moving out, and that the ancillary judgment did not include consequential orders about the timeline for carrying out the division of assets. On that basis, she contended that the judgment could not be said to be not less favourable than the OTS.
The second key issue was whether the OTS was genuine. Even where the formal requirements for costs consequences are met, the court must consider whether the offer was made in good faith or whether it was made merely to obtain an adverse costs order. The court also had to decide, assuming costs were warranted, whether indemnity costs were appropriate or whether standard costs should be fixed, taking into account the parties’ conduct and the enumerated factors under the FJR.
How Did the Court Analyse the Issues?
The court began by addressing the Wife’s argument on “not less favourable” comparison. The judge noted that the timeline for carrying out the division of assets was not a dispute raised at the earlier hearing on ancillary matters. The Wife had not argued that the timeline was a point of contention between the parties. While the judge did not treat this omission as decisive by itself, it was part of the factual record that the court considered when evaluating the Wife’s later attempt to reframe the comparison between the OTS and the judgment.
More importantly, the court focused on the practical effect of the difference between the OTS settlement quantum and the judgment sum. The OTS offered $1,840,000.00, while the judgment ordered $1,467,516.56. The difference was over $300,000. The judge accepted that this difference adequately covered the Wife for additional rental and moving costs according to the timelines prescribed under the OTS. In other words, even if the OTS contained a shorter timeline for moving out, the higher settlement amount was sufficient to offset the disadvantage claimed by the Wife.
Accordingly, the court was satisfied that the judgment obtained by the Husband was not less favourable than the terms of the OTS. This conclusion meant that the Husband’s entitlement to costs under the relevant FJR provisions was engaged. The court then turned to the structure of the FJR costs rules and the court’s discretion.
The judge observed that r 457(2) would entitle the Husband to costs on the standard basis up to the date the OTS was served, and costs on the indemnity basis from that date onwards. However, r 457(1) expressly provides that the entitlement is subject to the court’s discretion. Further, r 457(1)(7) gives the court full power to determine by whom and to what extent any costs are to be paid, notwithstanding the OTS. Thus, even where the formal conditions are satisfied, the court is not bound to award indemnity costs automatically.
In explaining the discretionary approach, the court relied on the principles articulated in JBB v JBA [2015] 5 SLR 0153. In that case, Debbie Ong JC (as she then was) emphasised that general costs principles must be applied with “more sensitivity” in matrimonial proceedings. Unlike ordinary civil litigation, family courts generally avoid a “winner” and “loser” framing, especially at first instance where the judgment is a declaration of result rather than a determination of prevailing party in the conventional sense. Costs may still be relevant where one party has made a genuine attempt to settle under the FJR procedure, because the non-litigious approach saves costs and avoids unnecessary legal expenditure.
Nevertheless, the court also cautioned that not every offer to settle warrants a favourable costs order. The judge referred to Resorts World at Sentosa Pte Ltd v Goel Adesh Kumar and another appeal [2018] 2 SLR 1070, which held that an offer must be genuine and not made merely to obtain an adverse costs order. Applying this, the judge found that the Husband’s OTS was indeed genuine. The judge pointed to correspondence showing the Husband’s intention to resolve the dispute amicably from the commencement of divorce proceedings. The Husband had repeatedly sought to resolve matters without contested applications.
The judge also addressed the Wife’s complaint that the OTS required a shorter timeline for moving out. The court considered that a period of six weeks could not be characterised as so unreasonable as to render the offer illusory or coercive. The OTS was therefore not a tactical trap; it was aimed at resolving the dispute.
Having found that the OTS was genuine and that the judgment was not less favourable, the court concluded that the Husband should be entitled to costs of the proceedings. The remaining question was whether those costs should be indemnity costs or standard costs, and the extent of any costs award.
For this, the judge considered the factors enumerated under r 457 of the FJR, including the existence of an offer to settle, the date it was made, the terms of the offer, and the extent to which the judgment was more favourable than the OTS. The OTS was served on 29 August 2022. After service, there were two exchanges of affidavits of assets and means, and the Wife made a further application for specific discovery. These interlocutory steps resulted in an additional seven months before ancillary matters were resolved, with judgment delivered on 3 April 2023.
The judge also quantified the difference between the judgment sum and the OTS. The judgment was more favourable for the Husband than the OTS by $372,483.44. The Wife argued that this difference should not be treated as a costs penalty because it was attributable to valuation of the matrimonial home, which was subject to market fluctuations. The court accepted that valuation issues could explain part of the difference, but it identified another significant contributor: 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 of the agreed matrimonial assets. That rejected adverse inference would have made a difference of approximately $900,000 given the total matrimonial assets were above $9 million.
The Wife further argued that the Husband should not receive costs due to “uncooperative conduct”, including failure to make full and frank disclosure of assets and an attempt to use an affidavit that was sworn but not filed. The judge accepted that the Husband’s conduct was wrong in one respect: he failed to disclose a portion of his assets, specifically trading accounts. However, the judge considered that this failure was limited and did not justify depriving the Husband of costs entirely.
On mediation, the Wife argued that the Husband rejected her proposal for mediation. The judge held that rejection of mediation was insufficient to justify a finding of unnecessary delay, particularly because the Husband continued to attempt to resolve the dispute amicably through private settlement. The judge also addressed the procedural error relating to the affidavit: while it was an error of counsel, it did not have material bearing on the outcome because the court had not drawn an adverse inference against the Husband in any event.
Balancing these factors, the judge determined that assessing costs on a standard basis for the entirety of the work done would be fair. This was a significant practical point: although the FJR framework could have supported indemnity costs from the OTS date, the court exercised discretion to award standard costs in light of the overall circumstances, including the Husband’s disclosure shortcomings and the procedural history.
What Was the Outcome?
The court fixed the costs of the action at $25,000, inclusive of disbursements, to be paid by the Wife to the Husband. This reflected the court’s conclusion that the Husband was entitled to costs because he made a genuine OTS and obtained a judgment not less favourable than the OTS, but that indemnity costs were not warranted in the circumstances.
In practical terms, the decision confirms that an OTS can have meaningful costs consequences in matrimonial proceedings, yet the court retains a broad discretion to calibrate the costs award—potentially downshifting from indemnity to standard costs where fairness requires it.
Why Does This Case Matter?
WLL v WLM [2023] SGHCF 30 is useful for practitioners because it illustrates how the High Court applies the FJR costs regime in divorce proceedings, particularly the “not less favourable” comparison and the genuineness requirement for an OTS. The decision shows that courts will not treat the OTS as a purely mathematical exercise focused only on settlement quantum. Instead, the court will consider whether the overall practical outcome is sufficiently comparable, including whether any differences in non-monetary terms are offset by the monetary difference awarded.
At the same time, the case reinforces the discretionary nature of costs awards in family litigation. Even where the rules provide for indemnity costs after an OTS, the court may still award standard costs for the whole period. This is consistent with the family-law sensitivity described in JBB v JBA: costs are not meant to operate as a blunt instrument to identify a “winner” and “loser”. Practitioners should therefore expect a nuanced approach that weighs settlement conduct against fairness considerations.
Finally, the decision provides guidance on how conduct issues affect costs. The court accepted that failure to disclose assets was wrong, but it did not treat it as automatically disqualifying the Husband from costs. The court also treated counsel error and mediation rejection as relevant but not determinative. For lawyers advising clients on settlement strategy and disclosure compliance, the case underscores that (i) a genuine OTS can be a powerful procedural tool, but (ii) disclosure failures and procedural missteps can still influence the court’s discretion in setting the level of costs.
Legislation Referenced
- Family Justice Rules 2014 (FJR), including:
- r 446: Offer to settle procedure
- r 454: Costs consequences where judgment is not less favourable than an OTS (including indemnity basis)
- r 457: Court’s discretion and factors relevant to costs orders in family proceedings
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.