JUDGMENT

Andrew Phang Boon Leong JA:

Introduction

[1] The present proceedings comprise appeals against the decision of the judge ("the judge") in Then Khek Koon and another v. Arjun Permanand Samtani and another and other suits [2014] 1 SLR 245 ("the judgment"). These appeals stem from a long and chequered history of litigation surrounding the unsuccessful collective sale of the development known as Horizon Towers and find their origin in three consolidated suits brought by the five plaintiffs ("the appellants") against the two defendants ("the respondents").

[2] The appellants in the present proceedings founded their claim against the respondents in equitable compensation for breach of fiduciary duties, seeking as damages the shortfall in the costs of the previous proceedings which they did not manage to recover, notwithstanding the earlier costs orders awarded in their favor (in Ng Eng Ghee and others v. Mamata Kapildev Dave and others (Horizon Partners Pte Ltd, intervener) and another appeal [2009] 4 SLR(R) 155 ("Ng Eng Ghee (Costs)"). This last-mentioned award of costs in favor of the appellants was made as a result of the decision of this court in Ng Eng Ghee and others v. Mamata Kapildev Dave and others (Horizon Partners Pte Ltd, intervener) and another appeal [2009] 3 SLR(R) 109 ("Ng Eng Ghee (CA)").

[3] After hearing detailed arguments by the appellants, we decided that the appellants could not have obtained in the present proceedings damages comprising the unrecovered costs of the previous proceedings, and therefore dismissed the appeals. Having arrived at this conclusion, it was not necessary for us to consider the anterior question of whether the appellants claim based on equitable compensation could be established in the first place. We now give the detailed grounds for our decision.

Background To The Appeals

[4] The facts of the previous proceedings and the background to the appeals before us have been set out in meticulous detail in the judgment, as well as in Ng Eng Ghee (CA) and Ng Eng Ghee (Costs), and it is unnecessary to canvass them again at length here. It suffices to note for the purposes of the present appeals that this court in Ng Eng Ghee (CA) set aside the collective sale and in so Maryani Sadeli v. Arjun Permanand Samtani & Anor and Other Appeals 592 [2015] 3 MLRA doing found, inter alia, that the respondents, as members of a sales committee in a collective sale owed fiduciary duties to the subsidiary proprietors of the development which included the appellants, and had in fact breached those fiduciary duties. This was the basis for the appellants claim in equitable compensation which they submitted was a cause of action independent of the earlier proceedings in Ng Eng Ghee (CA).

[5] As a result of this courts decision in Ng Eng Ghee (CA), the appellants were awarded costs for the proceedings leading up to their successful appeal (in Ng Eng Ghee (Costs)). However, the appellants were not satisfied with those costs orders. As in most cases, the costs recovered by the appellants did not amount to the actual sum of legal fees incurred. The appellants were also involved in some earlier applications which were not part of the procedural history of Ng Eng Ghee (CA), where no orders were made as to costs. The appellants were therefore left out of pocket to some extent; hence their claim against the respondents in equitable compensation in the present proceedings for the difference or shortfall between the amount of costs awarded in Ng Eng Ghee (Costs) and the costs they had actually incurred. It bears noting that, if the appellants were successful in the present proceedings, they would in effect have received a full indemnity for their costs - a position which would not have been attainable under a normal costs order.

[6] Three further points bear setting out in order to provide the necessary background to the present appeals. First, costs were awarded to all the appellants notwithstanding the fact that two of the a