Case Document

100%Judiciary

CACV 244/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 244 OF 2014

(ON APPEAL FROM HCMP NO 1840 OF 2013)

_______________

BETWEEN
	BEYONICS TECHNOLOGY LIMITED	1^st Plaintiff
	BEYONICS INTERNATIONAL PTE LTD	2^nd Plaintiff
	and
	GOH CHAN PENG	1^st Defendant
	LEE BEE LAN	2^nd Defendant
	WYSER INTERNATIONAL LIMITED	3^rd Defendant
	WYSER CAPITAL LIMITED	4^th Defendant

_______________

Before: Hon Chu and Barma JJA in Chambers

Date of written submissions: 15, 22 and 25 September 2015

Date of Decision: 13 October 2015

_______________

DECISION

_______________

Hon Chu JA (giving the Decision of the Court):

1.On 12 August 2015, we handed down our judgment allowing the appeal of the 1^st, 3^rd and 4^th defendants (collectively “the defendants”). At paragraph 65(5), we made a costs order nisi that:

(1) The costs order made by the Judge is set aside;

(2) The plaintiffs shall pay the defendants the costs of the applications in HCMP 1840 of 2013, to be taxed if not agreed; and

(3) The plaintiffs shall pay the defendants their costs of the appeal and of the application for leave to appeal in HCMP 3006 of 2014, to be taxed if not agreed.

2.The defendants apply by letter dated 24 August 2015 to vary the costs order to have the costs of the appeal and of the application for leave to appeal in HCMP 3006 of 2014 summarily assessed under Order 62 rule 9A of The Rules of the High Court, Cap. 4A. The plaintiffs oppose the application. Pursuant to the court’s directions, the parties had lodged their written submissions.

3.The defendants’ principal arguments in support of summary assessment of their costs of the appeal and the application for leave to appeal is that it will save time and costs, having regard to the fact that the amount of costs is estimated to be less than HK$560,000, only three hearings are involved and the duration of the relevant proceedings is only three months.

4.The plaintiffs oppose summary assessment on the ground that Order 62 rule 9A does not apply in that the proceedings in question are not interlocutory application, and that the costs involved are substantial and complex because there had been a number of hearings since July 2013 in the three actions between the parties (i.e. CACV 244 of 2014, HCMP 1840 of 2013 and HCMP 3006 of 2014).

5.In reply, the defendants argue that the court nevertheless has jurisdiction under Order 62 rule 9(4)(b) to order summary assessment. They also reiterate that they only seek summary assessment of the costs of the appeal and the leave application, which are neither substantial nor complex.

6.We have considered the submissions and the authorities cited. We are of the view that there is jurisdiction to order summary assessment in lieu of taxation of the costs of the appeal and the leave application under Order 62 rule 9(4)(b), which states:

“The Court in awarding costs to any person may direct that, instead of taxed costs, that person shall be entitled –

(a) … ; or

(b) to a sum of money summarily assessed in lieu of taxed costs.”

7.We are further of the view that this is an appropriate case to order summary assessment. The proceedings in question lasted for a short period involving only three hearings. No complex procedures were involved and the papers are not voluminous. Summary assessment of the costs will promote procedural economy and save time and costs, and accords with the underlying objectives in Order 1A.

8.Order 62 rule 9C(1)(a) provides:

“No direction or order may be made under rule 9(4)(b) or 9A(1)(a) or (b) for the payment of a sum of money if –

(a) the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with summarily”.

9.The plaintiffs suggest that there will be substantial grounds for disputing the amount of costs claimed by the defendants. It would appear from their submission that their belief stems from the fact that other than the appeal and the leave application, there are also the underlying first instance proceedings in which there were a number of hearings. The plaintiffs’ position is that the costs involved are substantial and complex.

10.The defendants have made it clear that they only seek summary assessment of the costs of the appeal and the leave application. They have also indicated that their estimated costs are less than HK$560,000. In the circumstance, the costs in HCMP 1840 of 2013 are not engaged and even if they are substantial and complex, this is not relevant. We do not accept that the plaintiffs have made out a case under Order 62 rule 9C(1)(a).

11.For the above reasons, we allow the defendants’ application. The costs order nisi is varied to the extent that the costs of this appeal and of the application for leave to appeal in HCMP 3006 of 2014 to be paid by the plaintiffs to the 1^st, 3^rd and 4^th defendants shall be assessed summarily.

12.Applying the normal rule of costs follow event, we order the plaintiffs to pay the 1^st, 3^rd and 4^th defendants the costs of the application to vary the costs order nisi to be summarily assessed together with the costs of the appeal and the leave application.

13.We further make the following directions to facilitate the summary assessment:

(1) The 1^st, 3^rd and 4^th defendants shall within 14 days file and serve a statement of costs for summary assessment.

(2) The plaintiffs shall file and serve their statement of objections within 14 days thereafter.

(3) Unless within 7 days thereafter either of the parties requests for an oral hearing, giving reasons for the same, the court will conduct the summary assessment on paper without a hearing.