Ching Yuk Yee v. Furniss Jacqueline Elizabeth and Another

CACV 236/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 236 OF 2014

(ON APPEAL FROM HCPI 127 OF 2012)

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DECISION ON COSTS

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Hon Poon JA (giving the Judgment of the Court) :

Costs Orders

1.By a judgment handed down on 25 June 2015, we allowed the plaintiff’s appeal against the judgment of Deputy High Court Judge Wilson Chan (“the Judge”) dated 24 October 2014 by substituting HK$400,000.00 for PSLA and HK$276,000.00 for pre-trial earnings.  We further made an order nisi that the plaintiff shall have the costs of the appeal against the defendants, to be taxed if not agreed (“Costs Order Nisi”).

2.On 20 November 2014, the Judge had made a costs order dated 20 November 2014 that (“the Judge’s Costs Order”) :

(1) the plaintiff to pay the 1^st defendant’s and 2^nd defendant’s costs of HCPI 127/2012 at the High Court scale from 16 January 2014, to be taxed on the party and party basis if not agreed; and

(2) the plaintiff to pay the costs of the 1^st defendant’s summons filed on 10 November 2014 and the 2^nd defendant’s summons filed on 5 November 2014 (“the Defendants’ Summonses”).

3.The Judge’s Costs Order varied the costs order nisi he made in his judgment dated 24 October 2014 that the defendants do pay the plaintiff’s costs of the action, to be taxed if not agreed.

The plaintiff’s application

4.By a summons dated 8 July 2015, the plaintiff applies for an order that :

(1) the Costs Order Nisi be varied as follows :

(a) the 1^st and 2^nd defendants do jointly and severally pay the plaintiff’s costs of the whole action in HCPI 127/2012, including the costs from 16 January 2014 onwards which was ordered by the Judge to be at the District Court scale, to be taxed if not agreed; and

(b) the Judge’s Costs Order be set aside;

(2) the 1^st and 2^nd defendants do pay the plaintiff’s costs of and incidental to this application, to be taxed if not agreed; and

(3) the plaintiff’s own costs to be taxed in accordance with the legal aid regulations.

5.The basis of the plaintiff’s application is this.

6.The Judge on 24 October 2014 entered judgment in favour of the plaintiff’s loss and damage in the sum of HK$386,400.96.  That judgment sum was less than the 2^nd defendant’s two sanctioned payments of respectively HK$500,000.00 and HK$102,600.00 made on 16 January and 5 March 2014, totalling HK$602,600.00.  The Judge therefore made the Judge’s Costs Order as he did on 20 November 2014 upon the application by the Defendants’ Summonses.

7.However, by virtue of our judgment dated 25 June 2015, the plaintiff has obtained a judgment totalling HK$727,407.00.  The plaintiff has now done better than the sanctioned payments.  The plaintiff is therefore entitled to the costs of the action including the costs of the Defendants’ Summonses.

The defendants’ stance

8.Both the 1^st and 2^nd defendants agree that the plaintiff shall have the costs below at the District Court scale save and except the costs of the Defendants’ Summonses.  They argue that each party shall bear their own costs for the Defendants’ Summonses.  Before it took out its Summons dated 5 November 2014, the 2^nd defendant wrote to the plaintiff’s solicitors asking if they agreed to vary the costs order nisi according to the proposals stated therein.  The plaintiff disagreed.  Hence the 1^st defendant had to take out the Summons.  The 2^nd defendant followed suit on 10 November 2014.  Had the plaintiff agreed to the proposals to vary the costs order nisi, the Defendants’ Summonses and the hearing before the Judge on 24 November 2014 would have been avoided.

Our view

9.We agree that in light of our judgment, the plaintiff should have the costs below at the District Court scale, to be taxed if not agreed.

10.On the costs of the Defendants’ Summonses, as the matter stood at the time, the defendants were entitled to rely on the sanctioned payments to ask for a variation of the costs order nisi made by the Judge.  On the materials before us, it is not clear why the plaintiff refused to vary the costs order nisi as per the 2^nd defendant’s proposals.  Presumably it was because he wanted to appeal against the Judge’s judgment.  In our view, if that was his reason, what the plaintiff should have done was to inform the defendants that he was seeking to appeal against the Judge’s judgment, and while the appeal was pending :

(1) he was prepared to accede to the variation without prejudice to his appeal and his right to apply to the Court of Appeal to deal with the costs of the trial depending on the result of his appeal; or alternatively,

(2) any consideration to vary the costs order nisi or any application to vary it should be deferred until the determination of the appeal.

11.If either of the above was accepted by the defendants, and that is what we think they, reasonably advised, would do, the Defendants’ Summonses and the hearing before the Judge on 24 November 2014 could have been avoided.

12.In the circumstances, it is only fair and reasonable not to visit the defendants with any costs order on the Defendants’ Summonses.  The parties should bear their own costs in relation to the same.

Orders

13.We vary the Costs Order Nisi to the following extent :

(1) subject to (2) below, the Judge’s Costs Order is set aside and the 1^st and 2^nd defendants do jointly and severally pay the plaintiff’s costs below at the District Court scale, to be taxed if not agreed; and

(2) the parties are to bear their own costs of the Defendants’ Summonses.

14.We further order the 1^st and 2^nd defendants to pay the plaintiff’s costs of this application; and that the plaintiff’s own costs to be taxed in accordance with the legal aid regulations.

Mr Cheung Yiu Leung, instructed by Yip, Tse & Tang, assigned by Director of Legal Aid for the plaintiff/appellant

1^st defendant/1^st respondent, in person

Mr Victor Gidwani, instructed by Chan & Chan, for the 2^nd defendant/2^nd respondent