Wong Shan Shan and Another v. The Incorporated Owners of Yue Wah Mansion and Another

HCA 1086/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1086 OF 2013

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DECISION
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Introduction

1.This is an application of the plaintiffs for variation of the costs order nisi made in the Decision handed down on 28 January 2015 whereby the joinder application of Urban Renewal Authority (“URA”) was granted. Here, I adopt the abbreviations used in the Decision.

2.The costs order nisi is that the plaintiffs do pay URA its costs of the actual hearing of the joinder summons before this court, to be taxed if not agreed. For all other costs of and occasioned by the joinder summons (including the filing of evidence), they should be costs in the cause.

3.The plaintiffs by their summons dated 10 February 2015 (“the Summons”) apply to vary the cost order nisi to the extent that insofar as the costs of the actual hearing of the joinder summons is concerned, it should either also be costs in the cause or be costs in the URA’s cause. For the latter, I believe the plaintiffs actually mean URA’s costs in the cause.

4.The parties agree that this application should be disposed of on paper. After reading the parties’ written submissions, I am not convinced that the costs order nisi should be varied.

Costs order nisi

5.I explained in the Decision that URA being the majority owner of the Mansion and the Land must have a proprietary interest in the Shop. It follows that it is a necessary party to this action (§19).

6.I made it clear that a necessary party must be joined irrespective of the strength of his case. I refused to assess the merits of the defence of URA despite the plaintiffs urged me to do so (§33).

7.Against this background, I do not find the objections of the plaintiffs to be reasonable and they should have consented to the joinder application (§40).  My costs order nisi is to mark my disapproval of the unreasonable opposition, which unnecessarily necessitated the hearing.

Discussion

8.The plaintiffs do not appeal against the Decision. However, they now ask me to consider the merits again and submit that URA might not ultimately succeed in the trial. They argue that in such a case, the joinder application may turn out to be unwarranted and a complete waste of time.

9.The plaintiffs’ present application is heavily based on the observation of To J in Melvin Waxman & Anor. v Li Fei Yu & Anor. ,unreported, HCA 1972/2012, 11.9.2013 to the effect that for interlocutory proceedings, the court is no longer required to apply the general rule of costs following the event except in special circumstances.

10.I am unable to accept the plaintiffs’ submission. In the first place, I already held in the Decision that the joinder application should be allowed without any assessment of the merits. The plaintiffs should be joined by necessity. There is no reason why in this application, this court should revisit the issue as to whether assessment of the merits is warranted.

11.Moreover, it is clear that the costs order nisi does not follow the general principle of costs following the event. It is one of the key objectives of the CJR that the parties should act reasonably and unnecessary interlocutory applications must be avoided.

12.The plaintiffs should have carefully considered their position in light of established principles of joinders. They could not reasonably expect that there would not be immediate adverse costs consequences should their objection be held to be invalid and eventually be rejected.  

Conclusion and Order

13.The plaintiffs have made no submissions capable of changing my view of the unreasonableness of their objection. Indeed I maintain the same view. I am not persuaded that my discretion in the costs issue of the joinder application should be exercised in a different manner.

14.In the premises, I reject the plaintiffs’ application. I order that the costs order nisi be made absolute. I further order that the plaintiffs do pay the costs of URA of and occasioned by the Summons forthwith. I direct that URA should submit a statement of costs within 14 days from today and the plaintiffs should submit their list of objections (if any) within 14 days thereafter. This court will make summary assessment on paper and notify the parties of the outcome by correspondence.

Chak & Associates for the plaintiffs

The 1^st defendant was not represented and did not take part

Fairbairn Catley Low & Kong for the 2^nd defendant