Appellate Division of High Court considers enforceability of costs judgment under REFJA

30 January 2023

Chen Aun-Li Andrew v Ha Chi Kut (suing as the sole executrix of the estate of Khoo Ee Liam, deceased) [2022] SGHC(A) 41

In Chen Aun-Li Andrew v Ha Chi Kut (suing as the sole executrix of the estate of Khoo Ee Liam, deceased), the Appellate Division of the High Court (“Appellate Division”) upheld the registration of a foreign judgment awarding costs from the Court of First Instance of the Hong Kong Special Administrative Region.

The Appellate Division considered the legislative history of the relevant provisions of the Reciprocal Enforcement of Foreign Judgments Act 1959 (“REFJA”) and found that the foreign judgment, which comprised (1) an order dated 30 April 2013 which awarded the respondent costs of Hong Kong legal proceedings to be taxed if not agreed (“Cost Order”), and (2) a cost certificate dated 13 May 2020 which certified the amount of taxed costs (“Cost Certificate”) (together, “Collective Judgment”), was validly registered within the six-year period for registration under section 4(1)(a) of the REFJA. The Appellate Division found that the Collective Judgment only became a “money judgment” on 13 May 2020 upon the issuance of the Costs Certificate. The Collective Judgment was therefore a registrable judgment under the REFJA only from that date, and the respondent was entitled to apply to register it within six years.

Allen & Gledhill Partners Tan Kai Liang and Melissa Mak acted for the successful respondent.

Background

Pursuant to section 4(1) of the REFJA, the respondent applied to register the Collective Judgment in Singapore on 21 June 2021. The Collective Judgment was registered on 22 June 2021. Subsequently, the appellant applied to set aside the registration of the Collective Judgment pursuant to section 5(1) of the REFJA, on the basis that the Collective Judgment was registered in contravention of the REFJA. Among others, the respondent contended that the Collective Judgment had not been registered within the six-year time limit for registration of a foreign judgment under section 4(1)(a) of the REFJA because the Cost Order was dated 30 April 2013.

The assistant registrar dismissed the application. The appellant’s appeal against the assistant registrar’s decision was subsequently dismissed by the General Division of the High Court (“General Division”). The General Division found that the date of the Collective Judgment was 13 May 2020, i.e. the date of the Cost Certificate, and held that the application for the judgment to be registered was made within the time required in section 4(1)(a) of the REFJA. There was therefore no basis to set aside its registration.

Appeal to the Appellate Division

On appeal to the Appellate Division, the appellant submitted that the Judge had erred in relying on the legislative history of the REFJA prior to the 2019 amendments to the Act (made by way of the Reciprocal Enforcement of Foreign Judgments (Amendment) Act 2019 (Act 25 of 2019)).

The appellant argued that the Cost Order was a “money judgment” as it obliged the appellant to make payment of money, even though the quantum of the sum was not defined. Even if the Cost Order and Cost Certificate had merged, the relevant date of the resulting Collective Judgment was 30 April 2013. The appellant submitted that the application for registration of the Collective Judgment therefore had to be made within six years of 30 April 2013, and the respondent’s application on 21 June 2021 was out of time.

The respondent contended that the Cost Order was not a “final money judgment” registrable under the REFJA. Only the Collective Judgment, which came into being on 13 May 2020 after the Costs Certificate was issued, was final and conclusive as to the amount payable.

Decision

The Appellate Division broadly accepted the respondent’s submissions and held that there was no reason to set aside the registration of the Collective Judgment:

• The amendments expanding the scope of judgments registrable under the REFJA did not affect the registration of “money judgments”: Section 4(3A) of the REFJA was introduced by the amendments to the REFJA in 2019. Under the amended REFJA, the registering court may only register a “non-money judgment” if it is satisfied that enforcement would be just and convenient. While various consequential amendments were also made to accommodate the newly expanded scope of the REFJA, the Appellate Division found that nothing in the post-2019 amendment schema for the enforcement of “non-money judgments” affected the registration of “money judgments”.

• The Costs Order was not a “money judgment” until the issuance of the Cost Certificate and the time period for registering the judgment started from that date: The Appellate Division found that the Cost Order in itself was not a “money judgment”. “Money judgment” is defined in section 2 of the REFJA as “a judgment under which a sum of money is payable”. For the purpose of section 4(1)(a) of the REFJA, the relevant “money judgment” was the Collective Judgment, which came into being only upon the issuance of the Cost Certificate. The merger of the Cost Certificate with the Cost Order turned the inchoate obligation to pay money into a choate obligation to pay a sum of money. As the right to enforce the Collective Judgment arose on 13 May 2020, it was a “money judgment” only from that date. The six-year time period in section 4(1)(a) of the REFJA therefore also commenced from that date.

Comment

The Appellate Division’s decision provides welcome clarification on how the court will determine the date of a foreign judgment, especially in a situation where costs may be taxed and quantified only at a much later date after the initial order granting costs in favour of a party. Litigants are entitled to, and should, wait for the foreign court to first tax and quantify costs before seeking to register the collective judgment in Singapore.

The same reasoning and principles may also apply to other types of foreign judgments where there is a gap in time between a judgment on liability and a judgment quantifying damages (e.g. in a case where there has been a bifurcation of proceedings between liability and assessment of damages).