Hyflux Ltd v Lum Ooi Lin: Security for Costs - Litigation Funding Undertaking
Hyflux Ltd (in compulsory liquidation) and others, the plaintiffs, appealed to the General Division of the High Court of Singapore against the decision of the Senior Assistant Registrar regarding the form of security for costs to be furnished to the defendant, Lum Ooi Lin. The plaintiffs proposed an undertaking from their litigation funders, Omni Bridgeway Limited and Omni Bridgeway (Singapore) Pte Ltd. Goh Yihan JC allowed the plaintiffs' appeal, ordering that the security be furnished by way of an undertaking to the court jointly by the litigation funders. The court held that the plaintiff is not restricted to any fixed form of security for costs and the proposed form of security is adequate.
1. Case Overview
1.1 Court
General Division of the High Court of the Republic of Singapore1.2 Outcome
Appeal Allowed
1.3 Case Type
Civil
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Appeal regarding the form of security for costs. The court allowed the plaintiffs' appeal, accepting an undertaking from litigation funders.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Cosimo Borrelli | Plaintiff, Appellant | Individual | Appeal Allowed | Won | |
| Hyflux Ltd (in compulsory liquidation) | Plaintiff, Appellant | Corporation | Appeal Allowed | Won | |
| Hydrochem (S) Pte Ltd (in compulsory liquidation) | Plaintiff, Appellant | Corporation | Appeal Allowed | Won | |
| Tuaspring Pte Ltd (under receivership) | Plaintiff, Appellant | Corporation | Appeal Allowed | Won | |
| Lum Ooi Lin | Defendant | Individual | Appeal Dismissed | Lost | |
| Patrick Bance | Plaintiff, Appellant | Individual | Appeal Allowed | Won |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Goh Yihan | Judicial Commissioner | Yes |
4. Counsels
4. Facts
- The plaintiffs appealed against the SAR's decision on the form of security for costs.
- The plaintiffs proposed an undertaking from their litigation funders, OB and OBS.
- The defendant argued that the undertaking was inadequate and sought a solicitor's undertaking.
- The parties agreed on the quantum of security, which is $90,000.
- OBS has net assets of about S$2.2m and profit before tax of about S$533,739 for financial year 2022.
- OB has substantial net assets of about S$605m, with cash and cash equivalents of about S$101m.
5. Formal Citations
- Hyflux Ltd (in compulsory liquidation) and others v Lum Ooi Lin, Suit No 267 of 2022 (Registrar’s Appeal No 42 of 2023), [2023] SGHC 113
6. Timeline
| Date | Event |
|---|---|
| Suit filed (Suit No 267 of 2022) | |
| Judgment reserved | |
| Plaintiffs refined the Undertaking by letter | |
| Judgment issued |
7. Legal Issues
- Form of Security for Costs
- Outcome: The court held that the undertaking from the litigation funders was an adequate form of security for costs.
- Category: Procedural
- Sub-Issues:
- Adequacy of Undertaking from Litigation Funders
- Enforceability of Security
8. Remedies Sought
- Appeal against the decision of the Senior Assistant Registrar
9. Cause of Actions
- No cause of actions
10. Practice Areas
- Commercial Litigation
- Civil Appeals
11. Industries
- Legal Services
- Finance
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| PT Bumi International Tankers v Man B&W Diesel S E Asia Pte Ltd and another | High Court | Yes | [2004] 3 SLR(R) 69 | Singapore | Characterized the provision of security by a banker’s guarantee as the “more conventional way” of doing so. |
| DIF III Global Co-Investment Fund, LP v BBLP LLC | Victoria Supreme Court | Yes | [2016] VSC 401 | Australia | Outlined principles to guide a court in determining the form of security for costs. |
| Rosengrens Ltd v Safe Deposit Centres Ltd | English Court of Appeal | Yes | [1984] 1 WLR 1334 | England and Wales | Established that the form of security is immaterial as long as it adequately protects the opposite party. |
| Yara Australia Pty Ltd v Oswal | Victoria Court of Appeal | Yes | (2013) 41 VR 425 | Australia | Stated that the focus is on whether the defendant will recover the costs of the action if he succeeds. |
| Infinity Distribution Ltd (in administration) v The Khan Partnership LLP | English Court of Appeal | Yes | [2021] 1 WLR 4630 | England and Wales | Decision where the court declined to order security in the form of a deed of indemnity. |
| In the matter of Pioneer Energy Holdings Pty Limited | New South Wales Supreme Court | Yes | [2013] NSWSC 1366 | Australia | Decision where the court declined to order security in the form of a lien over shares. |
| Nylex Corporation Pty Ltd v Basell Australia Pty Ltd | Victoria Supreme Court | Yes | [2009] VSC 97 | Australia | Decision where the court declined to order security in the form of a written undertaking from the plaintiff’s third-party’s insurers. |
| Mohammad Ali Aoun v Hassan Bahri | English Court of Appeal | Yes | [2002] EWCA Civ 1390 | England and Wales | Suggested that what is regarded as a “traditional” form of security today may well not be so tomorrow. |
| Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd | Victoria Court of Appeal | Yes | [2017] VSCA 293 | Australia | Stated that where the court has a choice, it should ordinarily prefer security in a liquid form over a personal undertaking by a third party other than a financial institution. |
| AP (UK) Ltd v West Midlands Fire and Civil Defence Authority | English Court of Appeal | Yes | [2001] EWCA Civ 1917 | England and Wales | Expressed concern about the risk of satellite litigation with non-conventional forms of security. |
| Iddles v Fonterra Australia Pty Ltd | Victoria Supreme Court | Yes | [2021] VSC 609 | Australia | Decision where the court allowed security for costs to be provided in the form of an undertaking by the plaintiff’s funder. |
| Versloot Dredging BV v HDI Gerling Industrie Vesicherung AG | English High Court | Yes | [2013] EWHC 658 (Comm) | England and Wales | Allowed security for costs to be provided in a deed of indemnity from the claimants’ insurer. |
| Harlequin Property (SVG) Ltd and another v Wilkins Kennedy (a firm) | English High Court | Yes | [2015] EWHC 1122 (TCC) | England and Wales | Decided that adequate security for costs could be provided by a defendant through a means other than a payment into court or a bank guarantee. |
| Re Tiaro Coal Ltd (in liq) | New South Wales Supreme Court | Yes | [2018] NSWSC 746 | Australia | Stated that it was wrong to suggest that the “normal” forms of security by cash deposit or bank guarantee should be viewed as preferable to other forms. |
| Global Finance Group (in liq) v Marsden Partners | Supreme Court of Western Australia | Yes | [2004] WASC 52 | Australia | Declined to order that security be provided by an undertaking from the plaintiff’s litigation funder. |
| Northern Southern Western Supermarkets Pty Ltd v HIH Casualty and General Insurance (in Liq) | New South Wales Supreme Court | Yes | [2002] NSWSC 541 | Australia | Declined to order that security be provided by an undertaking from the holding company of the plaintiff’s litigation funder. |
| DIF III Global Co-Investment Fund, LP v BBLP LLC | Victoria Supreme Court | Yes | [2015] VCS 484 | Australia | Lower court decision in DIF III Global Co-Investment Fund, LP v BBLP LLC where the court ordered security should be provided in the form of “deposit into Court, or by way of [a] guarantee from an agreed Australian bank or other authorised deposit-taking institution”. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Rules of Court (2014 Rev Ed) | Singapore |
| Rules of Court 2021 | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Security for costs
- Undertaking
- Litigation funding
- Omni Bridgeway Limited
- Omni Bridgeway (Singapore) Pte Ltd
- Form of security
- Adequacy of security
- Enforcement of security
15.2 Keywords
- Security for costs
- litigation funding
- undertaking
- appeal
- civil procedure
- Singapore
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Costs | 95 |
| Security for Costs | 90 |
| Civil Procedure | 80 |
| Civil Practice | 75 |
| Insolvency Law | 60 |
| Litigation Funding | 50 |
| Summary Judgement | 30 |
16. Subjects
- Civil Procedure
- Litigation Funding
- Security for Costs