A judge reviewing costs must exercise appropriate discretion and adhere to established principles, avoiding treating such reviews as appeals.

Shaik Daud Ismail JCA:

This appeal is on the issue of taxation of costs and the principles involved in the review of costs by a judge.

The respondent (the plaintiff in the court below) had sued the appellant (the defendant). The chronology of events shows that the writ was served on the appellant on 29 August 1988. The appellant entered appearance on 3 September 1988. The appellant then filed his statement of defence on 9 November 1988. Then on 30 November 1988, the respondent filed an application for summary judgment under O. 14 of the Rules of the High Court , 1980.

This was followed by an exchange of affidavits. Before the O. 14 application was heard, the respondent flied an application and obtained an order to discontinue the proceeding but nevertheless, costs were awarded to the appellant. It is common ground that although the O. 14 hearing did not take place, the appellant is entitled to a "getting up" fee, but the issue is its quantum. The appellant then taxed his bill of costs before the taxing master ie the registrar. The learned registrar allowed a sum of RM14,000 as the getting up fee although the appellant had asked for RM20,000. The appellant was satisfied with the amount allowed but the respondent applied for a review before the taxing master who dismissed the application and confirmed the amount of RM14,000 as the getting up fee. The respondent then applied for a further review before a judge in chambers. The learned judge reduced the amount to RM2,000.

It is the submission of learned counsel for the appellant that the learned judge misdirected himself by treating the review as an appeal and in so doing appraised the review by way of a rehearing and substituted his own discretion with that of the taxing master.

Learned counsel for the appellant cited the decision in Diversey (Far East) Pte Ltd v. Chester Chai Chung Ching & Ors [1993] 2 SCR 241. That case is also a case of review of costs. It was submitted that the review by a judge operates as a rehearing and the judge is entitled to exercise his discretion in substitution of the discretion of the registrar in respect of the amounts awarded. The Singapore Court of Appeal in setting aside the Judicial Commissioner's reduction of the taxed costs and restoring the award of the registrar had this to say when interpreting the provisions of O. 59 r. 36(5), of the Singapore Rules of the Supreme Court, 1970:

The phrase 'as the circumstances require' confers on a judge a discretion. This discretion, however, is not unfettered and must be judicially exercised. The judge should not interfere with the registrar's decision unless there is an error of principle or some other material error. The dicta of Aitken J in Re Kana Moona Syed Abubakar (deceased) to to effect that a judge would be justified in interfering where the registrar's decision was an affront to reason and common sense is, in our opinion, too harsh a standard to apply. What is required is a broad overview of the matter by the judge and if there is an error in principle or some other material error, he will be justified in interfering with the decision below. To suggest, as counsel for the respondents did, that the hearing before the judge is a rehearing would not be in keeping with the wording of r. 36 which speaks of review, not of rehearing nor, for that matter, of appeal. (The emphasis is ours).

Although this is a decision of the Singapore Court of Appeal, it is relevant and justified for us to consider and adopt as O. 59 r. 36 (5) of the Singapore Rules of the Supreme Court 1970 is in pari materia with our O. 59 r. 36(5) which covers a review of the registrar's certificate by a judge.

In Lloyds. Bank plc v. Ang Cheng Ho Quarry & Ors , Chong Siew Fai J (as he was then) held that generally speaking the discretion of the taxing officer on quantum will not be interfered with.

In the present appeal we are of the view that the learned judge committed this grave error when he treated the review as