BCBC Singapore v PT Bayan: Costs Allocation After Protracted Litigation on Joint Venture Breach

The Singapore Court of Appeal heard an appeal by BCBC Singapore Pte Ltd and Binderless Coal Briquetting Company Pty Limited against the Singapore International Commercial Court's decision on post-transfer costs in their suit against PT Bayan Resources TBK and Bayan International Pte Ltd. The underlying case involved a breach of contract claim related to a joint venture. While BCBC initially succeeded on liability issues, PT Bayan ultimately prevailed on damages and quantum. The Court of Appeal allowed the appeal, adjusting the discount applied to the respondents' costs to 70% to better reflect the litigation's outcome and the late introduction of a key defense.

1. Case Overview

1.1 Court

Court of Appeal of the Republic of Singapore

1.2 Outcome

Appeal Allowed

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore Court of Appeal revisits costs allocation in a decade-long dispute over a joint venture, adjusting the discount for post-transfer costs.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
BCBC Singapore Pte LtdAppellant, PlaintiffCorporationAppeal Allowed in PartPartial
Binderless Coal Briquetting Company Pty LimitedAppellant, PlaintiffCorporationAppeal Allowed in PartPartial
PT Bayan Resources TBKRespondent, DefendantCorporationCosts ReducedPartial
Bayan International Pte LtdRespondent, DefendantCorporationCosts ReducedPartial

3. Judges

Judge NameTitleDelivered Judgment
Sundaresh MenonChief JusticeYes
Judith PrakashJustice of the Court of AppealNo
Jonathan Hugh ManceInternational JudgeNo

4. Counsels

Counsel NameOrganization
Francis Xavier SCRajah & Tann Singapore LLP
Chia Xin Ran AlinaRajah & Tann Singapore LLP
Gani Hui Ying TracyRajah & Tann Singapore LLP
Tay Bok Chong AlvinRajah & Tann Singapore LLP
Joel SoonRajah & Tann Singapore LLP
Jaikanth ShankarDavinder Singh Chambers LLC
Rajvinder Singh ChahalDavinder Singh Chambers LLC
Tan Ruo YuDavinder Singh Chambers LLC

4. Facts

  1. BCBCS and BCBC sued PT Bayan Resources TBK and Bayan International Pte Ltd for breach of contract.
  2. The SICC awarded $4,694,633.20 in costs and disbursements to the defendants.
  3. The plaintiffs appealed against the SICC’s decision on post-transfer costs of $2,671,787.
  4. The respondents raised the Winding Up Defence late in the proceedings.
  5. The appellants succeeded on most liability issues but lost on damages and quantum.
  6. The SICC applied a 40% discount to the respondents’ claimed costs.
  7. BCBC withdrew its claim against BI.

5. Formal Citations

  1. BCBC Singapore Pte Ltd and anothervPT Bayan Resources TBK and another, , [2023] SGCA(I) 8

6. Timeline

DateEvent
Lawsuit filed as Suit No 1 of 2015
Respondents raised the Winding Up Defence
SICC issued the Costs Judgment
Third Tranche Appeal Judgment released
Plaintiffs granted permission to appeal
Appeal heard
Judgment reserved

7. Legal Issues

  1. Allocation of Costs
    • Outcome: The Court of Appeal adjusted the discount applied to the respondents' costs from 40% to 70%.
    • Category: Procedural
    • Sub-Issues:
      • Issue-based approach to costs
      • Discounting approach to costs
      • Late amendment of pleadings
    • Related Cases:
      • [2023] SGCA(I) 1
      • [2022] SGHC(I) 17
      • [1995] QB 137
  2. Late Amendment of Pleadings
    • Outcome: The court found that the Winding Up Defence could and should have been pleaded earlier.
    • Category: Procedural
    • Sub-Issues:
      • Impact on costs
      • Reasonable opportunity to respond
    • Related Cases:
      • [1995] QB 137

8. Remedies Sought

  1. Monetary Damages
  2. Specific Performance

9. Cause of Actions

  • Breach of Contract
  • Breach of Guarantee

10. Practice Areas

  • Commercial Litigation
  • International Arbitration

11. Industries

  • Energy
  • Mining

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
BCBC Singapore Pte Ltd and another v PT Bayan Resources TBK and anotherCourt of AppealYes[2023] SGCA(I) 1SingaporeThe judgment refers to the earlier judgment to provide the factual background of the dispute.
BCBC Singapore Pte Ltd and another v PT Bayan Resources TBK and anotherSingapore International Commercial CourtYes[2022] SGHC(I) 17SingaporeThe judgment under appeal, concerning the allocation of costs, is discussed and its decision is partially overturned.
Dextra Asia Co Ltd and Another v Mariwu Industrial Co (S) Pte LtdHigh CourtYes[2005] SGHC 85SingaporeCited for the principle that costs orders must reflect the overall justice of the case.
Travellers’ Casualty v Sun LifeHigh Court of JusticeYes[2006] EWHC 2885 (Comm)England and WalesCited for the principle that costs orders must reflect the overall justice of the case.
Redstone Mortgages v B LegalUnknownYes[2015] 2 Costs LR 425UnknownCited for the principle that costs orders should be workable and not lead to expensive satellite costs litigation.
AEI Rediffusion Music Ltd v Phonographic Performance LtdCourt of AppealYes[1999] 1 WLR 1507England and WalesCited for the principle that strict adherence to the principle that costs follow the event would discourage litigants from being selective as to the points taken as part of their case.
Goh Chok Tong v Jeyaretnam Joshua Benjamin and another actionCourt of AppealYes[1998] 2 SLR(R) 971SingaporeCited for the principle that an appellate court would be slow to overturn a trial court’s costs order unless it can be shown that the trial court had erred in coming to its decision.
Beoco Ltd v Alfa Laval Co LtdQueen's BenchYes[1995] QB 137England and WalesCited for the approach that where a plaintiff makes a late amendment which substantially alters the case the defendant has to meet and without which the action will fail, the defendant is entitled to the costs of the action up to the date of the amendment.
Kaines (UK) Ltd v Österreichische Warrenhandelsgesellschaft Austrowaren GmbH (formerly CGL Handelsgesellschaft mbH)UnknownYes[1993] 2 Lloyd’s Rep 1UnknownCited for the exception to the Beoco approach, where an earlier introduction of the amendment would have made no real difference to the course of the litigation.
Re Jinro (HK) International LtdUnknownYes[2004] 2 HKLRD 221Hong KongCited for the exception to the Beoco approach, where an earlier introduction of the amendment would have made no real difference to the course of the litigation.
Waterman v Gerling Australia Insurance Co Pty Ltd (No 2)Supreme Court of New South WalesYes[2005] NSWSC 1111AustraliaCited for the exception to the Beoco approach, where an earlier introduction of the amendment would have made no real difference to the course of the litigation.
Abhilash s/o Kunchian Krishnan v Yeo Hock Huat and anotherCourt of AppealYes[2019] 1 SLR 873SingaporeCited for the factors the court will have regard to in considering whether permission to appeal should be granted.
Grace Electrical Engineering Pte Ltd v Te Deum Engineering Pte LtdCourt of AppealYes[2018] 1 SLR 76SingaporeCited for the factors the court will have regard to in considering whether permission to appeal should be granted.
BCBC Singapore Pte Ltd and another v PT Bayan Resources TBK and anotherSingapore International Commercial CourtYes[2022] SGHC(I) 2SingaporeThe judgment refers to the earlier judgment to provide the factual background of the dispute.
Liu Shu Ming and another v Koh Chew Chee and another matterHigh CourtYes[2023] 1 SLR 1477SingaporeCited for the principle that in a claim for wasted expenditure, once the plaintiff proves that it has incurred certain expenditure which it claims it cannot recover because of the breach, the burden is on the defendant to show that the plaintiff would not, in any event, have been able to recover the sum in question.
Writers Studio Pte Ltd v Chin Kwok YungHigh CourtYes[2022] SGHC 205SingaporeCited for the principle that pleadings are meant to give the opposing party notice of one’s case.
Summit Property Limited v Pitmans (A Firm)UnknownYes[2001] All ER (D) 270 (Nov)UnknownCited for the definition of the issue-based approach to costs.
Khng Thian Huat and another v Riduan bin Yusof and anotherHigh CourtYes[2005] 1 SLR(R) 130SingaporeExpressed reservations over issue-based costs orders, and considered that they should be confined to unusual cases or cases where the raising of particular issues had unnecessarily or unreasonably protracted, or added to the costs or complexity of proceedings.
Element Six Technologies Ltd v IIa Technologies Pte LtdHigh CourtYes[2020] SGHC 140SingaporeConsidered issue-based costs in the context of a patent suit.
Monsanto Technology LLC v Cargill International SA (No 2)Patents CourtYes[2008] FSR 16England and WalesCited for the approach where the court begins by looking at who the successful party is in overall terms, and any issues on which that party has failed are assessed in that context.
Comfort Management Pte Ltd v OGSP Engineering Pte Ltd and anotherHigh CourtYes[2022] 5 SLR 525SingaporeConsidered issue-based costs and observed that where a successful party has failed on certain claims or issues, a court may make a “Type I” order, which deprives the successful party of the right to recover all or part of his costs from the unsuccessful party. Alternatively, the court may make a “Type II” order, which requires a successful party to pay all or part of the unsuccessful party’s costs.
Ng Eng Ghee and others v Mamata Kapildev Dave and others (Horizon Partners Pte Ltd, intervener) and another appealCourt of AppealYes[2009] 4 SLR(R) 155SingaporeCited for the indemnity principle, which holds that a party who succeeds in litigation is accorded complete justice if and only if he recovers compensation for the costs of the litigation in addition to the compensation he is entitled to under the substantive law.
Smithkline Beecham plc and others v Apotex Europe Limited and othersUnknownYes[2004] All ER (D) 246 (Dec)UnknownGiven that issues regularly overlap, it may be difficult, if not impossible, to clinically delineate the issues in any given case, which is a necessary antecedent to identifying the winning party for each issue.
Fortune Link Engineering Co Ltd v Sui Chong Construction & Engineering Co LtdUnknownYes[2016] HKCU 1611Hong KongGiven that issues regularly overlap, it may be difficult, if not impossible, to clinically delineate the issues in any given case, which is a necessary antecedent to identifying the winning party for each issue.
Cyberworks Audio Video Technology Ltd v Mei Ah (HK) Co LtdUnknownYes[2020] HKCU 3816Hong KongGiven that issues regularly overlap, it may be difficult, if not impossible, to clinically delineate the issues in any given case, which is a necessary antecedent to identifying the winning party for each issue.
Re Elgindata Ltd (No 2)UnknownYes[1993] 1 All ER 232UnknownCited for the difficulty of isolating an issue in the case.
EFG Bank AG, Singapore Branch v Surewin Worldwide Ltd and othersHigh CourtYes[2022] SGHC 26SingaporeLegal and factual issues may be framed at varying levels of generality. Parties may disagree over the level of generality or granularity that paints the most accurate picture of each party’s relative success in the case.
Burchell v Bullard and othersUnknownYes[2005] 3 Costs LR 507UnknownIdentifying, defining and delineating issues necessarily import a greater degree of granularity into the assessment of costs. This has the effect of inflating the costs incurred in the costs assessment.
English v Emery Reimbold & Strick LtdUnknownYes[2002] 1 WLR 2409UnknownThe rationale behind r 44.3(7) was explained in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 at [115] and [116] (see also Budgen v Andrew Gardner Partnership [2002] EWCA Civ 1125 at [27]; McGlinn v Waltham Contractors Ltd and others (No 4) [2007] EWHC 698 at [83]; and National Westminster Bank plc v Kotonou [2007] EWCA Civ 223 at [22]):
Meady v Greyhound Canada Transportation CorpOntario Superior Court of JusticeYes[2013] OJ No 4634CanadaThe general rule is that unsuccessful claimants are jointly and severally liable unless the court orders otherwise in its discretion.
Wing Joo Loong Ginseng Hong (Singapore) Co Pte Ltd v Qinghai Xinyuan Foreign Trade Co Ltd and another and another appealCourt of AppealYes[2009] 2 SLR(R) 814SingaporeOne trite principle that guides the exercise of the court’s discretion as to costs is that where there are two (or more) co-defendants, only one set of costs will normally be payable to them if both (or all) of them succeed, even if they were separately represented.
Mike Gaffikin Marine Pty Ltd v Princes Street Marina Pty LtdSupreme Court of New South WalesYesBC9603588AustraliaOrdinarily, orders for costs against two or more defendants are joint and several, unless “some special circumstances” are shown.
Rushcutters Bay Smash Repairs v H McKenna Netmakers & OrsSupreme Court of New South WalesYes[2003] NSWSC 670AustraliaOrdinarily, orders for costs against two or more defendants are joint and several, unless “some special circumstances” are shown.
Rowe and others v Ingenious Media Holdings plc and othersUnknownYes[2020] EWHC 235 (Ch)England and WalesThe starting point could not be “as starkly straightforward as that”, as costs are always in the discretion of the court and cases vary infinitely.
Australian Securities and Investments Commission v Select AFSL Pty Ltd (No 3)Federal Court of AustraliaYes[2023] FCA 723AustraliaThe court declined to depart from the general rule, noting that there was not only a common substratum of facts, but also a commonality of parties, as the fourth defendant was the controlling mind of the other three corporate defendants.
Filipovic v UpshallUnknownYes[1998] OJ No 4498CanadaThe unsuccessful plaintiffs were jointly and severally liable for costs as they had sought similar remedies arising from the same alleged cause of action.
Floyd and others v John Fairhurst & CoUnknownYes[2004] All ER (D) 312 (May)UnknownMrs Floyd’s claims did not overlap with Mr Floyd’s case save in a minor respect, namely in the loss of £1,000 occasioned by the defendant’s alleged failure to cause the company to pay a dividend (at [41], [82] and [84]).
Dansk Rekylriffel Syndikat Aktieselskab v SnellHigh Court of JusticeYes[1908] 2 Ch 127England and WalesOne defendant did not put on a defence and judgment was entered. The other went to trial and lost. Neville J, who delivered the judgment, described it as “an injustice” that a defendant who has not entered an appearance or put in a defence may be rendered liable for the co-defendant’s costs (at 138).
Stumm v Dixon & Co and KnightQueen's Bench DivisionYes(1889) 22 QBD 529England and WalesThere was no connection between the unsuccessful parties, and they were not running a single case.
Hobson and another v Sir W C Leng & CoUnknownYes[1914] 3 KB 1245UnknownWhere one of the defendants breaks ranks with the rest of the defendants, and chooses to run his own separate defence, he should expect to bear costs for that defence (if unsuccessful), and the successful claimant may not be entitled to look to any other defendant for such costs.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
Rules of Court (2014 Rev Ed)Singapore
O 110 r 46 of the Rules of Court (2014 Rev Ed)Singapore
O 59 of the Rules of Court (2014 Rev Ed)Singapore
O 1 r 3(1)(a) of the Singapore International Commercial Court Rules 2021Singapore
O 21 r 22(1)(b) of the Singapore International Commercial Court Rules 2021Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Costs
  • Winding Up Defence
  • Post-transfer costs
  • Issue-based approach
  • Discounting approach
  • Late amendment
  • Joint venture
  • Reasonable costs
  • Beoco approach

15.2 Keywords

  • costs
  • appeal
  • joint venture
  • litigation
  • Singapore
  • commercial
  • contract
  • discount
  • amendment

17. Areas of Law

Area NameRelevance Score
Costs95
Civil Litigation70
Civil Practice70
Appellate Practice60
Rules of court50
Commercial Disputes40
Arbitration30
Contract Law20

16. Subjects

  • Civil Procedure
  • Contract Law
  • Costs
  • Commercial Dispute