Elbow Holdings v Marina Bay Sands: Security for Costs in Misrepresentation & Breach of Contract Claim

Elbow Holdings Pte Ltd appealed against the decision of the Supreme Court Registrar to award security for costs of $75,000 to Marina Bay Sands Pte Ltd in Suit No 954 of 2012, a claim for damages for misrepresentation and breach of a collateral contract. MBS counterclaimed for arrears. The High Court dismissed the appeal, ordering Elbow Holdings to furnish security for costs within 21 days and allowing MBS to proceed with its counterclaim.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Appeal dismissed. Elbow Holdings is to furnish security for costs within 21 days.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Appeal regarding security for costs in a case involving Elbow Holdings and Marina Bay Sands over alleged misrepresentation and breach of contract.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
MARINA BAY SANDS PTE LTDDefendant, RespondentCorporationSecurity for Costs AwardedWon
Elbow Holdings Pte LtdPlaintiff, AppellantCorporationAppeal DismissedLost

3. Judges

Judge NameTitleDelivered Judgment
Choo Han TeckJYes

4. Counsels

Counsel NameOrganization
Alma YongWongPartnership LLP
Sim Mei LingWongPartnership LLP
Tan WeiyiWong & Leow LLC
Lucas LimWong & Leow LLC
Chia JoanneWong & Leow LLC

4. Facts

  1. Elbow Holdings operates South Coast Bar & Bistro at Marina Bay Sands Shoppes.
  2. Elbow Holdings and Marina Bay Sands entered into a lease agreement on 8 March 2010.
  3. Elbow Holdings commenced Suit No 954 of 2012 for damages for misrepresentation and breach of a collateral contract.
  4. Marina Bay Sands counterclaimed for arrears arising from Elbow Holdings' use of the units and outdoor space.
  5. Marina Bay Sands commenced two further actions against Elbow Holdings for arrears.
  6. Elbow Holdings' 2012 Annual Report stated that its liabilities exceeded its assets.
  7. Elbow Holdings' shareholders have provided continuing financial support to enable the company to meet its obligations.

5. Formal Citations

  1. Elbow Holdings Pte Ltd v Marina Bay Sands Pte Ltd, Suit No 954 of 2012 (Registrar's Appeal No 239 of 2014), [2014] SGHC 219

6. Timeline

DateEvent
Elbow Holdings and Marina Bay Sands entered into a lease agreement.
South Coast Bar & Bistro opened for business.
Elbow Holdings commenced Suit No 954 of 2012 for damages for misrepresentation and breach of a collateral contract.
Marina Bay Sands commenced Suit No 702 of 2013 for arrears.
Marina Bay Sands' lawyers requested security for costs in the sum of $150,000.
Elbow Holdings' lawyers replied, stating their client would not provide security.
The Registrar ordered security for costs amounting to $75,000 in favor of Marina Bay Sands.
Elbow Holdings obtained an order consolidating Suits 702 of 2013, 553 of 2014 and 954 of 2012.
The High Court dismissed Elbow Holdings' appeal.

7. Legal Issues

  1. Security for Costs
    • Outcome: The court dismissed the appeal and ordered Elbow Holdings to furnish security for costs.
    • Category: Procedural
    • Related Cases:
      • [1999] 1 SLR(R) 112
      • [2008] 4 SLR(R) 224
      • [2006] 4 SLR(R) 817
  2. Misrepresentation
    • Outcome: The court did not make a ruling on the merits of the misrepresentation claim.
    • Category: Substantive
  3. Breach of Contract
    • Outcome: The court did not make a ruling on the merits of the breach of contract claim.
    • Category: Substantive

8. Remedies Sought

  1. Damages

9. Cause of Actions

  • Misrepresentation
  • Breach of Contract

10. Practice Areas

  • Commercial Litigation

11. Industries

  • Hospitality
  • Real Estate

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Creative Elegance (M) Sdn Bhd v Puay Kim Seng & AnorHigh CourtYes[1999] 1 SLR(R) 112SingaporeCited for the principle that it must be just to order security for costs, having regard to all relevant circumstances.
Frantonios Marine Services Pte Ltd v Kay Swee TuanHigh CourtYes[2008] 4 SLR(R) 224SingaporeCited for the principle that the fact a company needs to rely on third parties to keep it in business is an indication that it may not have the financial means to pay costs.
Ho Wing On Christopher v ECRC Land Pte Ltd (in liquidation)Court of AppealYes[2006] 4 SLR(R) 817SingaporeCited for the policy reasons leaning in favor of protecting a defendant against an unsatisfied costs order where impecunious corporations are concerned.
Trident International Freight Services v Manchester Ship Canal CoN/AYes[1990] BCLC 263N/ACited regarding the inappropriateness of a court hearing an interlocutory application for security for costs to determine facts in dispute, except in the clearest of cases.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
Section 388(1) of the Companies Act (Cap 50, 2006 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Security for costs
  • Misrepresentation
  • Breach of contract
  • Lease agreement
  • Arrears
  • Impecunious
  • Going concern

15.2 Keywords

  • security for costs
  • misrepresentation
  • breach of contract
  • lease
  • Singapore
  • High Court

17. Areas of Law

Area NameRelevance Score
Security for Costs80
Contract Law70
Costs60
Company Law50
Misrepresentation40
Real Estate30

16. Subjects

  • Civil Procedure
  • Contract Law