Ho Pak Kim Realty v Revitech: Security for Costs Application in Construction Dispute
In a construction dispute before the High Court of Singapore, Ho Pak Kim Realty Co Pte Ltd (plaintiff), the main contractor, sued Revitech Pte Ltd (defendant), the project owner, for underpayment. Revitech counterclaimed for overpayment. The court dismissed Revitech's application for security for costs, citing the overlap between the defense and counterclaim, delay in the application, and the reasonable prospect of success of the plaintiff's claim.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Defendant's application dismissed.
1.3 Case Type
Civil
1.4 Judgment Type
Judgment reserved
1.5 Jurisdiction
Singapore
1.6 Description
High Court dismissed Revitech's application for security for costs against Ho Pak Kim Realty in a construction dispute, citing counterclaim overlap and delay.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Ho Pak Kim Realty Co Pte Ltd | Plaintiff | Corporation | Application resisted | Neutral | Thrumurgan s/o Ramapiram |
| Revitech Pte Ltd | Defendant | Corporation | Application dismissed | Lost | Tito Shane Isaac, Justin Chan |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Leo Zhen Wei Lionel AR | AR | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Thrumurgan s/o Ramapiram | Thiru & Co |
| Tito Shane Isaac | Tito Isaac & Co LLP |
| Justin Chan | Tito Isaac & Co LLP |
4. Facts
- Plaintiff is the main contractor for a construction project.
- Defendant is the owner of the construction project.
- Plaintiff claims for underpayment of certified sums.
- Defendant counterclaims for overpayment.
- Plaintiff failed to file audited accounts for the last four years.
- Payments of costs orders were made by related parties, not the plaintiff.
- Plaintiff relies on letters of award from related companies to show solvency.
5. Formal Citations
- Ho Pak Kim Realty Co Pte Ltd v Revitech Pte Ltd, Suit 36/2006, SUM 5155/2008, [2008] SGHC 230
6. Timeline
| Date | Event |
|---|---|
| Project completed | |
| Suit ongoing since 2006 | |
| Plaintiff’s application for security for costs was dismissed | |
| Defendant’s application was similarly dismissed | |
| Pre-trial conference held | |
| Pre-trial conference held | |
| Directions given that the defendant was to file the said application | |
| Pre-trial conference held | |
| Application for security for costs was filed | |
| Judgment reserved |
7. Legal Issues
- Security for Costs
- Outcome: The court dismissed the defendant's application for security for costs.
- Category: Procedural
- Sub-Issues:
- Impecuniosity of plaintiff
- Delay in application
- Overlap between defence and counterclaim
- Related Cases:
- [1993] BCLC 532
- [1999] 1 SLR 600
- [2006] 4 SLR 817
- [2008] 4 SLR 224
- [2001] 1 HKC 39
- [2004] 2 SLR 427
- [2006] SGHC 154
- [2002] 3 SLR 538
- [2001] 4 SLR 524
- (1878) 7 Ch D 500
- (1890) 25 QBD 235
- (1990) 59 BLR 43
8. Remedies Sought
- Monetary Damages
9. Cause of Actions
- Breach of Contract
10. Practice Areas
- Commercial Litigation
- Construction Disputes
11. Industries
- Construction
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Re Unisoft Group Ltd (No 2) | N/A | Yes | [1993] BCLC 532 | N/A | Cited for the principle that the defendant has to show that the plaintiff company would be unable to meet its debts when an order for costs is made against it. |
| Creative Elegance (M) Sdn Bhd v Puay Kim Seng | Court of Appeal | Yes | [1999] 1 SLR 600 | Singapore | Cited for the principle that once the condition under s 388 is satisfied, the court’s discretion is invoked, and in exercise of that discretion the court decides whether or not to order security for costs against the plaintiff. |
| Ho Wing On Christopher and Ors v ECRC Land Pte Ltd (in liquidation) | Court of Appeal | Yes | [2006] 4 SLR 817 | Singapore | Cited for the principle that public policy is in favour of limiting uninhibited access to the courts by companies, as opposed to a natural person, is a fortiori where the company in question is already in insolvent liquidation. |
| Frantonios Marine Services Pte Ltd and Anor v Kay Swee Tuan | N/A | Yes | [2008] 4 SLR 224 | Singapore | Cited for the principle that s 388(1) does not require that there must be a winding up application against the plaintiff before it could be applicable and the various considerations that were relevant to a determination of whether there is credible evidence that a plaintiff company is unable to pay the defendant’s costs. |
| San Heines Investment Ltd v THL (Holdings) Co Ltd & Anor | N/A | Yes | [2001] 1 HKC 39 | Hong Kong | Cited for the principle that the applicant still has to produce credible evidence – be it direct or circumstantial – from which it may reasonably be inferred that the respondent will be (not may be) unable to pay the costs. Only then does the onus shift to the respondent. |
| Jurong Town Corp v Wishing Star Ltd | Court of Appeal | Yes | [2004] 2 SLR 427 | Singapore | Cited for the principle that where there is an overlap between the defence and the counterclaim, the granting of security would amount to indirectly aiding the pursuit of the counterclaim. |
| PT Muliakeramik Indahraya TBK v Nam Huat Tiling & Panelling Co Pte Ltd | High Court | Yes | [2006] SGHC 154 | Singapore | Cited to argue that the fact that the defence is entirely subsumed within the counterclaim cannot be a decisive factor against ordering security. |
| Ooi Ching Ling Shirley v Just Gems Inc | Court of Appeal | Yes | [2002] 3 SLR 538 | Singapore | Cited for the principle that every application for further security should be made promptly. If it is made so late that the bulk of the costs have already been incurred, the application might well be refused. |
| L&M Concrete Specialists v United Eng Contractors | N/A | Yes | [2001] 4 SLR 524 | Singapore | Cited for the principle that the strength or weakness of the plaintiff’s claim is certainly a factor that can be taken into account in determining the issue of security for costs. |
| Northampton Coal, Iron & Waggon Co v Midland Waggon Co | N/A | Yes | (1878) 7 Ch D 500 | N/A | Cited for the principle that the fact that a company is in liquidation is prima facie evidence that it is unable to pay the defendant’s costs, unless evidence to the contrary is given. |
| Pure Spirit Co v Fowler | N/A | Yes | (1890) 25 QBD 235 | N/A | Cited for the principle that the fact that a company is in liquidation is prima facie evidence that it is unable to pay the defendant’s costs, unless evidence to the contrary is given. |
| B J Crabtree (Insulation) Ltd v GPT Communication Systems Ltd | N/A | Yes | (1990) 59 BLR 43 | N/A | Cited for the principle that there can be no rule of thumb as to the grant or refusal of an order for security. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Companies Act (Cap 50, 2006 Rev Ed) | Singapore |
| Evidence Act (Cap 97, 1997 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Security for costs
- Impecuniosity
- Counterclaim
- Construction dispute
- Audited accounts
- Credible testimony
- Related companies
15.2 Keywords
- Security for costs
- Construction dispute
- Singapore
- High Court
- Impecuniosity
16. Subjects
- Civil Procedure
- Construction Law
- Security for Costs
17. Areas of Law
- Civil Procedure
- Construction Law