fc_judgments: 81
Data source: lawnet.sg/lawnet/web/lawnet/free-resources
This data as json
| _id | _item_id | tags | date | court | case-number | title | citation | url | counsel | timestamp | coram | html | _commit |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 81 | 329d7b87de31eabf988fcf53f9c264778dd2c5ae | [
"Family Law \u2013 Procedure \u2013 Costs",
"Family Law \u2013 Procedure \u2013 Costs \u2013 Costs payable to a legally aided person"
] |
2024-09-18 | Family Court | Divorce No 2455 of 2023 (Summons No 1426 of 2024) | XDF v XDG | [2024] SGFC 82 | https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32215-SSP.xml | [
"Pang Peck Ki (Robert Wang & Woo LLP) for the plaintiff",
"Seetha Lkshmi P.S. Krrishnan (East Asia Law Corporation) for the defendant."
] |
2024-10-01T16:00:00Z[GMT] | Soh Kian Peng | <root><head><title>XDF v XDG</title></head><content><div class="contentsOfFile"> <h2 align="center" class="title"><span class="caseTitle"> XDF <em>v</em> XDG </span><br><span class="Citation offhyperlink"><a class="pagecontent" href="javascript:viewPageContent('/Judgment/32215-SSP.xml')">[2024] SGFC 82</a></span></h2><table id="info-table"><tbody><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Case Number</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">Divorce No 2455 of 2023 (Summons No 1426 of 2024)</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Decision Date</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">18 September 2024</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Tribunal/Court</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">Family Court</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Coram</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> Soh Kian Peng </td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Counsel Name(s)</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> Pang Peck Ki (Robert Wang & Woo LLP) for the plaintiff; Seetha Lkshmi P.S. Krrishnan (East Asia Law Corporation) for the defendant. </td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Parties</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> XDF — XDG </td></tr></tbody></table> <p class="txt-body"><span style="font-style:italic">Family Law</span> – <span style="font-style:italic">Procedure</span> – <span style="font-style:italic">Costs</span></p> <p class="txt-body"><span style="font-style:italic">Family Law</span> – <span style="font-style:italic">Procedure</span> – <span style="font-style:italic">Costs</span> – <span style="font-style:italic">Costs payable to a legally aided person</span></p> <p></p><table border="0" cellpadding="0" cellspacing="0" width="100%"><tbody><tr><td width="80%"><p class="Judg-Hearing-Date">18 September 2024</p></td><td><p class="Judg-Date-Reserved">Judgment reserved</p></td></tr></tbody></table><p></p> <p class="Judg-Author"> Assistant Registrar Soh Kian Peng:</p> <p class="Judg-1"><a id="p1_1"></a>1 This is my decision on costs of SUM 1426/2024 (“SUM 1426”) which was the Wife’s application for discovery and interrogatories. The Wife is legally aided. She is represented by Ms Pang Peck Ki (“Ms Pang”) who has been assigned by the Legal Aid Bureau.<span class="FootnoteRef"><a href="#Ftn_1" id="Ftn_1_1"><sup>[note: 1]</sup></a></span> The Husband, on the other hand, is represented by Ms Seetha Lkshmi P.S. Krrishnan (“Ms Seetha”).</p> <p class="Judg-1"><a id="p1_2"></a>2 I had allowed the Wife’s application and made certain orders in respect of the various items sought in discovery and interrogatories.</p> <p class="Judg-1"><a id="p1_3"></a>3 Ms Pang argued that because the Wife had succeeded in her application, she should be entitled to costs. Ms Pang submitted that costs be fixed at $2500 (all-in) to be paid by the Husband to the Director of Legal Aid.</p> <p class="Judg-1"><a id="p1_4"></a>4 As for the Husband, he was content to leave the quantum of costs to be decided by the court, though he highlighted that the Wife was not successful in all aspects of the matter in that she did not obtain orders in respect of every item.</p> <p class="Judg-1"><a id="p1_5"></a>5 Given that the Wife was successful in that she had obtained orders in respect of the majority of the items in her application for discovery and interrogatories, she is entitled to costs.</p> <p class="Judg-1"><a id="p1_6"></a>6 However, because the Wife is legally-aided, the provisions of the Legal Aid and Advice Act 1995 (“LAAA”), which traces its roots to the New South Wales Legal Assistance Act (1943 – 1947),<span class="FootnoteRef"><a href="#Ftn_2" id="Ftn_2_1"><sup>[note: 2]</sup></a></span> are also relevant to consider. For ease of reference, the relevant provisions are reproduced below:</p> <p class="Judg-Quote-1"> <b>Costs</b> </p> <p class="Judg-Quote-1">16.—(1) Where an aided person is entitled to costs in any proceedings to which the aided person is a party —</p> <p class="Judg-QuoteList-2">(a) the court must make, in favour of the aided person, such order for costs as the court would have made in favour of a person who is not an aided person; and</p> <p class="Judg-QuoteList-2">(b) where costs follow the event, the aided person is entitled to the same costs as a person who is not an aided person.</p> <p class="Judg-Quote-1">(2) Subsection (1) does not apply to any costs against another aided person.</p> <p class="Judg-Quote-1">(3) Where any moneys are recovered by an aided person (whether in proceedings or by virtue of a settlement or compromise), the aided person is liable to pay to the Director so much of the moneys so recovered as is recovered in respect of costs.</p> <p class="Judg-Quote-1">(4) For the purposes of subsection (3), the moneys recovered in respect of costs are deemed to be so much of the total amount so recovered as exceeds the amount (if any) recoverable by the aided person otherwise than as costs.</p> <p class="Judg-Quote-1">(5) Without limiting subsections (1), (2), (3) and (4), “costs” includes —</p> <p class="Judg-QuoteList-2">(a) counsel’s fees, whether or not the same have been paid;</p> <p class="Judg-QuoteList-2">(b) fees and charges of the nature referred to in section 12(4)(a) and (b); and</p> <p class="Judg-QuoteList-2">(c) any sums which, pursuant to section 13(3), are expended by the Director in meeting out-of-pocket expenses or are advanced by the Director for that purpose.</p> <p class="Judg-Quote-1">(6) Where the costs recovered by the Director under this section include any of the fees, charges or sums referred to in subsection (5)(b) and (c), such costs must be applied, in the first instance, in and towards satisfaction of such fees, charges or sums.</p> <p class="Judg-1"><a id="p1_7"></a>7 In short, when it comes to the quantum of costs, what s 16(1) of the LAAA provides is that a legally-aided person is to be treated no differently from a litigant who is not legally-aided in the proceedings when it comes to an assessment of costs.</p> <p class="Judg-1"><a id="p1_8"></a>8 In the circumstances, I fix costs at $1650 (all-in). In doing so, I take into account the fact that SUM 1426 was not legally complex as it involved no novel legal arguments. SUM 1426 was also not factually complex given that there were only 4 main items in the Wife’s request for discovery and one main item in the Wife’s request for interrogatories. The written submissions and bundle of authorities filed were also not particularly lengthy.</p> <p class="Judg-1"><a id="p1_9"></a>9 The second question which I must turn my mind to, given that the Wife is legally-aided, is who should the Husband be ordered to pay costs to. As a starting point, it is trite that only a party to the proceeding is entitled to costs. That much is clear from the words of Rule 852(1) of the Family Justice Rules 2014:</p> <p class="Judg-Quote-1"> <b>When costs to follow the event</b> </p> <p class="Judg-Quote-1">852.—(1) Subject to the following provisions of this Division, <b>a party is not entitled to recover any costs of or incidental to any proceedings from any other party to the proceedings except under an order of the Court.</b></p> <p class="Judg-Quote-1">[emphasis added]</p> <p class="Judg-1"><a id="p1_10"></a>10 Rule 9 of the Family Justice Rules 2014 also provides that:</p> <p class="Judg-Quote-1">Construction of references to party, etc., in person</p> <p class="Judg-Quote-1">9.—(1) In these Rules, for the purposes of any relevant matter or proceeding, unless the context otherwise requires —</p> <p class="Judg-QuoteList-2">(a) a reference to a person, plaintiff or party who sues or acts in person, to a defendant or party who appears, defends or acts in person, to an appellant or a respondent who appears, who does not or fails to appear or who acts in person, or to a litigant in person includes a reference to…</p> <p class="Judg-1"><a id="p1_11"></a>11 Two interlinked points may be drawn from the above. First, that the Director of Legal Aid is not, and cannot, be considered a party to the proceedings. Second, and following from this, it cannot be ordered that costs be paid to the Director of Legal Aid. The only exception where money may be directly paid to the Director of Legal Aid is concerning moneys paid into court. This is provided for by Rule 444 of the FJR 2014 which states:</p> <p class="Judg-Quote-1"> <b>Person to whom payment to be made</b> </p> <p class="Judg-Quote-1">444.—(1) Where the party entitled to money in Court is a person in respect of whom a Grant of Aid is or has been in force entitling him to legal aid under the Legal Aid and Advice Act (Cap. 160), payment must be made —</p> <p class="Judg-QuoteList-2">(a) to that party’s solicitor; or</p> <p class="Judg-QuoteList-2">(b) if that party is not represented by a solicitor, to the Director of Legal Aid if the Court so orders.</p> <p class="Judg-Quote-1">(2) The payment in paragraph (1) may be made without the need for any authority from the party referred to in that paragraph.</p> <p class="Judg-Quote-1">(3) Subject to paragraph (1), payment must be made —</p> <p class="Judg-QuoteList-2">(a) to the party entitled;</p> <p class="Judg-QuoteList-2">(b) on the party’s written authority, to his solicitor; or</p> <p class="Judg-QuoteList-2">(c) if the Court so orders, to the party’s solicitor without such authority.</p> <p class="Judg-Quote-1">(4) This rule applies whether the money in Court has been paid into Court under rule 435 or under the order of the Court or a certificate of the Registrar.</p> <p class="Judg-1"><a id="p1_12"></a>12 The conclusion which I have reached is supported by the wording of s 16 of the LAAA. For example, s 16(3) of the LAAA (see above at [6]) states that Wife is accordingly liable to pay, out of the moneys recovered in the course of the proceedings, “so much of the moneys so recovered as is recovered in respect of costs” to the Director of Legal Aid.</p> <p class="Judg-1"><a id="p1_13"></a>13 Also relevant is the Legal Aid and Advice Regulations (“LAAR”). Regulation 14 provides what is to be done with moneys payable to aided persons. In particular, Regulation 14(4) states:</p> <p class="Judg-Quote-1">(4) Where in any proceedings to which an aided person is a party —</p> <p class="Judg-QuoteList-2">(a) an order or agreement is made providing for the recovery or preservation of property for the benefit of the aided person and, by virtue of section 22A of the Act, there is a first charge on the property for the benefit of the Fund; or</p> <p class="Judg-QuoteList-2">(b) <b>an order or agreement is made for the payment of costs to the aided person</b>,</p> <p class="Judg-Quote-1">the Director may —</p> <p class="Judg-QuoteList-2">(i) require the aided person to take such proceedings, being proceedings which may be taken under section 5 of the Act, as may be necessary to enforce or give effect to the order or agreement; or</p> <p class="Judg-QuoteList-2">(ii) <b>proceed to enforce any such order or agreement for the payment of money by the issue in his name of such proceedings referred to in sub-paragraph (i) as the Director deems fit in any court, without reference to the aided person, if the aided person fails, refuses or is unable to take</b> those proceedings or the Director is of the opinion that it is reasonable and expedient to do so having regard to the probable cost of proceedings and the likelihood of their being successful.</p> <p class="Judg-Quote-1">[emphasis added]</p> <p class="Judg-1"><a id="p1_14"></a>14 This is the effect of s 16 of the LAAA read with Regulation 14 of the LAAR. Costs should be paid to the legally aided person who is then liable to pay this sum to the Director of Legal Aid. This follows from the proposition that the Director of Legal Aid, who is not a party to the proceedings, is not entitled to costs. In the event that the person who is liable to pay costs does not do so, the Director of Legal Aid may step in and directly enforce the order to pay costs to the legally aided person.</p> <p class="Judg-1"><a id="p1_15"></a>15 One might raise the point that there is effectively, no difference between an order to pay costs directly to the Director of Legal Aid, as opposed to an order to pay costs to a party in the proceedings. After all, that sum will, in any case, have to be paid to the Director of Legal Aid. While this is true, it is important to specify <b><em>who</em></b> costs should be paid to – the non-legally aided party could well raise the argument that the order was defective on the ground that a non-party to the proceedings is not entitled to costs.</p> <p class="Judg-1"><a id="p1_16"></a>16 I therefore order that the Husband pay costs of SUM 1426, fixed at $1650 (all-in) to the Wife. This is to be done by 16 October 2024. I also further order that the Wife, upon receipt of this sum from the Husband, make payment to the Director of Legal Aid as is required under s 16 of the LAAA.</p> <p class="Judg-1"><a id="p1_17"></a>17 Finally, it remains for me to thank Ms Pang and Ms Seetha for their able assistance.</p> <hr align="left" size="1" width="33%"><p class="Footnote"><sup><a href="#Ftn_1_1" id="Ftn_1">[note: 1]</a></sup>Grant of Aid issued on 27 November 2023.</p><p class="Footnote"><sup><a href="#Ftn_2_1" id="Ftn_2">[note: 2]</a></sup>See <em>Singapore Parliamentary Debates, Official Report</em> (6 June 1956) vol 1 at col 1960 where the Minister for Labour and Welfare, Mr Lim Yew Hock said: “It will therefore be seen that the present system of legal assistance to poor persons is altogether too limited to do more than touch the fringe of the need. The need for an improved legal aid service is long overdue and the Marshall Government can take justifiable pride in introducing this much needed social legislation. The Bill now under consideration indicates the lines along which we might well proceed. There may perhaps be need for modifications or amendments as a result of experience gained over a period, but as to the general proposition that the time is long overdue for a comprehensive legal aid service, there can be little disagreement. Much work and thought has gone into the drafting of the Bill. An officer of the Colonial Legal Service spent several weeks in the Public Solicitor's Office in Sydney, New South Wales, studying the legislation, practice and procedure there, and, in the main, this Bill, based on his recommendations, is an adaptation to local conditions of the New South Wales Legal Assistance Act, 1943-1947”.</p></div></content></root> | 1809 |
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