Case Details
- Citation: [2023] SGHCF 30
- Case Title: WLL v WLM
- Court: High Court (Family Division)
- Division/Proceeding: General Division of the High Court (Family Division) — Divorce Transferred No 4401 of 2021
- Date of Judgment: 23 June 2023
- Date Heard: 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 metadata)
- Cases Cited: [2023] SGHCF 19; [2018] 2 SLR 1070; [2015] 5 SLR 0153
- Judgment Length: 7 pages, 1,908 words
Summary
In WLL v WLM [2023] SGHCF 30, the High Court (Family Division) dealt with costs arising from ancillary matters in a divorce. The Husband had obtained an interim judgment of divorce and, after a hearing on ancillary matters (division of matrimonial assets and maintenance), the court ordered him to pay the Wife $1,467,516.56 for the division of matrimonial assets. The question of costs was reserved and later determined following the parties’ written submissions.
The central issue was whether the Husband should be awarded costs in light of an Offer to Settle (“OTS”) made under the Family Justice Rules 2014. The Husband argued that the judgment he obtained was not less favourable than the OTS, entitling him to costs on an indemnity basis from the date the OTS was served. The Wife opposed costs, contending that the judgment was not “not less favourable” when the OTS terms were considered holistically, and further argued that the Husband’s conduct should disentitle him to costs. The court accepted the Husband’s position, found the OTS to be genuine, and fixed costs at $25,000 (inclusive of disbursements) payable by the Wife to the Husband on a standard basis.
What Were the Facts of This Case?
The parties, referred to as the Husband (WLL) and Wife (WLM), obtained an interim judgment of divorce on 16 February 2022. Ancillary matters were heard by the court, namely the division of matrimonial assets and maintenance for the Wife. On 3 April 2023, the court delivered its judgment on those ancillary matters: it made no order for maintenance, but ordered the Husband to pay the Wife $1,467,516.56 for the division of matrimonial assets. The issue of costs was expressly reserved for later determination.
Before the ancillary matters were resolved, the Husband had made an Offer to Settle dated 29 August 2022. The OTS was served on the Wife pursuant to the procedural framework in the Family Justice Rules 2014. The Husband’s OTS offered to pay the Wife $1,840,000.00 in settlement of the division of matrimonial assets, payable within three months from the date of the certificate of the final judgment of divorce. Importantly, the OTS did not contain a deadline for acceptance and remained open until the judgment on ancillary matters was delivered on 3 April 2023.
After the court’s decision on 3 April 2023, the Husband sought costs based on the OTS. He maintained that the Wife received $372,483.44 less than the amount offered under the OTS, and therefore the judgment obtained was not less favourable than the OTS in the relevant sense. He sought costs on an indemnity basis from the time the OTS was made, relying on the costs regime in the FJR. He also sought a specific quantum of costs, broken down into standard-basis costs for work done from 16 September 2021 to 29 August 2022, indemnity-basis costs for work done from 29 August 2022 to 3 April 2023, and disbursements including those connected to an application for specific discovery (FC/SUM 2515/2022).
The Wife opposed any costs order. She argued that, although the OTS offered a higher settlement sum, the Husband did not obtain a judgment “not less favourable” when the other terms of the OTS were taken into account. In particular, the Wife contended that the OTS was less favourable in terms of the timeline afforded to her to move out of the matrimonial home, and that the court’s judgment did not address the timeline for carrying out the division of assets. She further pointed to her own counter-proposal: under her counter proposal, the Husband would pay $2,042,000 within three months from the date of the final judgment of divorce, and she would be given a further three months from receipt of the settlement amount to move out of the matrimonial home.
What Were the Key Legal Issues?
The first legal issue was whether the Husband’s judgment on the division of matrimonial assets was “not less favourable” than the terms of the OTS for the purposes of the costs consequences under the Family Justice Rules 2014. This required the court to consider not only the settlement quantum but also the OTS’s other terms, including the practical effect of timelines associated with the settlement and the carrying out of the ancillary orders.
The second legal issue concerned the court’s discretion in awarding costs and the basis on which costs should be assessed. Even if the Husband were prima facie entitled to costs under the FJR framework triggered by an OTS, the court had to decide whether to exercise its discretion to award costs at all, and if so, whether costs should be on a standard basis or an indemnity basis. This involved consideration of the general principles of costs in matrimonial proceedings, which differ from ordinary civil litigation due to the family context and the court’s reluctance to create “winners” and “losers”.
The third issue related to whether the Wife could rely on alleged uncooperative conduct by the Husband to defeat or reduce any costs entitlement. The Wife raised several points: alleged failure to make full and frank disclosure of assets, an attempt to use an affidavit that was sworn but not filed, and the Husband’s rejection of mediation. The court had to determine whether these matters should affect the costs order and, if so, to what extent.
How Did the Court Analyse the Issues?
The court began by addressing the Wife’s argument that the judgment was not “not less favourable” than the OTS when all terms were considered. The Wife’s position was that the OTS was less favourable because it provided a shorter timeline for her to move out of the matrimonial home, and that the court’s judgment did not contain consequential orders on timelines. The court rejected this submission, emphasising that the timeline issue had not been argued at the earlier hearing on ancillary matters. The court noted that the Wife did not raise the timeline as a point of dispute, and therefore the court’s earlier determination focused on the ratio for division of assets rather than on the logistics of moving out.
While the court acknowledged that the omission was not crucial in itself, it considered the practical comparison between the OTS and the judgment. The court held that the difference in settlement quantum—over $300,000—adequately compensated the Wife for additional rental and moving-related costs according to the timelines prescribed under the OTS. On that basis, the court was satisfied that the Husband’s judgment was not less favourable than the terms of the OTS for the purposes of the costs analysis.
Having found that the “not less favourable” threshold was met, the court turned to the discretionary nature of costs under the FJR. The court observed that while the FJR provides entitlements that may follow from an OTS, those entitlements are subject to the court’s discretion. The court also referred to the breadth of the court’s power to determine by whom and to what extent costs are to be paid, even notwithstanding the existence of an OTS.
In explaining the approach to costs in matrimonial proceedings, the court relied on the reasoning in JBB v JBA [2015] 5 SLR 0153, where Debbie Ong JC (as she then was) held that general costs principles must be applied with greater sensitivity in matrimonial cases. The court highlighted that family courts generally avoid framing outcomes in terms of “winners” and “losers”, particularly where the matter is heard at first instance and the judgment is essentially a declaration of result rather than a conventional contest over liability. Costs may nonetheless be more relevant where one party has made a genuine attempt to settle using the prescribed FJR procedure, because the non-litigious approach could save costs or prevent the reasonable offeror from having to incur legal costs beyond the point of offer.
However, the court cautioned that not every OTS should automatically result in a favourable costs order. The court cited Resorts World at Sentosa Pte Ltd v Goel Adesh Kumar and another [2018] 2 SLR 1070 for the proposition that an OTS must be genuine and not made merely to obtain an adverse costs order. Applying this principle, the court found that the Husband’s OTS was genuine. The court pointed to correspondence showing the Husband’s intention to resolve the dispute amicably, including multiple attempts to settle without contested applications. Although the OTS proposed a shorter timeline for the Wife to move out, the court considered that a period of six weeks was not so unreasonable as to render the OTS illusory or coercive.
With genuineness established and the judgment found not less favourable than the OTS, the court concluded that the Husband should be entitled to costs of the proceedings. The remaining question was whether those costs should be on an indemnity basis. The court referred to the factors enumerated under r 457 of the FJR, which govern costs orders generally and include considerations such as the existence of an offer to settle, the date of the offer, the terms of the offer, and the extent to which the judgment is more favourable than the offer.
The court then assessed the procedural timeline and the relationship between the OTS and the eventual resolution. The OTS was served on 29 August 2022. After service, there were two exchanges of affidavits of assets and means, and the Wife made an additional application for specific discovery. The court noted that these interlocutory steps resulted in an additional seven months before the ancillary matters were resolved, with judgment delivered on 3 April 2023. The court also considered the quantitative difference between the OTS sum and the judgment sum: the Husband’s judgment was more favourable to him by $372,483.44.
In addressing the Wife’s argument that the difference was attributable to valuation fluctuations of the matrimonial home, the court accepted that valuation issues may play a role but identified another significant contributing factor: the court’s rejection of the Wife’s argument for an adverse inference against the Husband, which would have increased the Wife’s share by 10%. The court stated that this adverse inference issue represented a difference of approximately $900,000, given that total matrimonial assets were above $9 million. Thus, the court treated the difference between the OTS and the judgment as substantially influenced by the court’s substantive rejection of the Wife’s adverse inference argument, rather than merely market valuation changes.
The court then addressed the Wife’s allegations of uncooperative conduct. The Wife argued that the Husband failed to make full and frank disclosure of assets, attempted to rely on an affidavit that was sworn but not filed, and rejected mediation. The court accepted that the Husband’s conduct at some point was wrong—specifically, failing to disclose a portion of his assets, limited to trading accounts. Nevertheless, the court held that this did not justify depriving the Husband of costs. The court also treated the mediation rejection as insufficient to justify a finding of unnecessary delay, especially in light of the Husband’s continuing efforts to resolve the dispute amicably through private settlement. The court did, however, indicate that mediation rejection could count in the amount of costs awarded.
Finally, the court considered the procedural error regarding the affidavit that was sworn but not filed. The court characterised this as an error of counsel’s judgment rather than a factor that materially affected the outcome, particularly because the court had not drawn an adverse inference against the Husband in any event. Weighing these considerations, the court concluded that assessing costs on a standard basis for the entirety of the work done would be fair in the circumstances.
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. Although the Husband had sought indemnity costs from the date of the OTS, the court determined that a standard-basis assessment was appropriate given the overall fairness considerations in matrimonial proceedings and the specific procedural and conduct-related factors raised by the Wife.
Practically, the decision confirms that an OTS can materially influence costs outcomes in divorce ancillary matters, but it also demonstrates that the court retains a structured discretion to calibrate the basis and quantum of costs even where the “not less favourable” threshold is satisfied.
Why Does This Case Matter?
WLL v WLM is significant for practitioners because it illustrates how the Family Justice Rules’ OTS costs regime operates in the family context, where the court’s approach to costs is intentionally sensitive to the nature of matrimonial litigation. The judgment reinforces that an OTS is not merely a tactical device: it must be genuine, and the court will examine the surrounding conduct and correspondence to determine whether the offer reflects a sincere attempt to resolve the dispute without litigation.
Second, the case provides guidance on how “not less favourable” is assessed. The court’s reasoning shows that the comparison between an OTS and the eventual judgment may focus on the practical overall effect, including whether differences in settlement quantum sufficiently address other terms such as timelines. Importantly, the court also considered the procedural history—specifically, that timeline issues were not raised as disputes at the earlier hearing—when determining what mattered for the costs comparison.
Third, the decision is useful for understanding how alleged non-disclosure and procedural missteps affect costs. While the court acknowledged the Husband’s failure to disclose trading accounts, it treated the error as limited and non-material to the outcome, and therefore did not deprive him of costs. This indicates that costs consequences are not automatic: the court will consider materiality, causation, and whether the conduct actually affected the substantive result or merely reflected procedural imperfections.
Legislation Referenced
- Family Justice Rules 2014 (FJR), including rules on offers to settle and costs (notably r 446, 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 [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.