The Incorporated Owners of Tung Lo Court v. Tsui Wai Yip
Read the full judgment text of CACV 27/2015 on BabelCite. This Court of Appeal judgment was delivered on 25 November 2015 before Yuen JA, Chu JA, Poon JA.
Civil procedure – costs – costs order nisi – variation – Rules of the High Court, Order 42, rule 5B(6) – whether order nisi becomes absolute if no summons filed to vary it – whether exceptional circumstances justify departure from costs following the event – appeal allowed in part reducing award from HK$400,000 to HK$200,000 – Court of Appeal made two orders nisi: (1) no order as to costs below; (2) defendant to have costs of appeal on party and party basis – plaintiff filed summons seeking to vary only the 2nd Order Nisi – plaintiff later sought in written submissions also to vary the 1st Order Nisi – held: 1st Order Nisi became absolute on 17 August 2015 because no properly constituted summons was filed to vary it; statements in counsel's submissions do not constitute a valid application and are in any event out of time – held: no exceptional circumstances identified to justify varying the 2nd Order Nisi – both summonses dismissed – plaintiff to pay defendant's costs of the summonses – skeleton bill of costs to be lodged within 14 days – statement of opposition limited to two A4 pages within 7 days thereafter – costs to be assessed summarily on paper.
Legal issues: Whether the 1st Order Nisi became absolute and cannot be varied · Whether the 2nd Order Nisi (defendant's costs of appeal) should be varied
Outcome: Both the August Summons and the September Summons dismissed; the 1st Order Nisi and 2nd Order Nisi stand as originally made.
Cited by 8 cases
|
CACV 27/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 27 OF 2015 (ON APPEAL FROM DCCJ 3333 OF 2011) _______________
_______________
________________________ DECISION ON COSTS ________________________ Hon Poon JA (giving the Decision on Costs of the Court) : 1.By a judgment dated 3 August 2015, we allowed the defendant’s appeal against the judgment of Deputy Judge B Mak dated 4 August 2014 to the extent that the award made by the Judge against the defendant on the plaintiff’s claim be reduced from HK$400,000.00 to HK$200,000.00. We further made an order nisi that :
2.By a summons dated 17 August 2015, the plaintiff applied to vary the 2nd Order Nisi to an order that there shall be no order as to costs of the appeal (“the August Summons”). On the same date, Yuen JA directed that the August Summons be dealt with on paper and gave consequential directions for filing of submissions. But the plaintiff did not file any written submissions as directed. Instead, it took out another summons dated 17 September 2015 (“the September Summons”), seeking leave to file written submissions out of time and leave to file an affirmation of Mr Lam Mo Chiu. On 23 September 2015, Poon JA directed that the September Summons be dealt with on paper and gave directions for filing of submissions. 3.On 5 October 2015, the plaintiff lodged with the court its written submissions. In [2] of the written submissions, Mr Cheung, counsel for the plaintiff, stated that the plaintiff applied for an order that :
So in effect the plaintiff now also seeks to vary the 1st Order Nisi. However, that is not permissible. 4.Under Order 42, rule 5B(6), Rules of the High Court, where the court makes a costs order nisi, unless an application has been made to vary that order, that order shall become absolute 14 days after the decision is pronounced. An application to vary a costs order nisi must be by way of summons : see Hong Kong Civil Procedure, 2016 Edition, Vol 1, §32/6/9A at p 738. 5.Here, by the August Summons, the plaintiff only sought to vary the 2nd Order Nisi. There has never been any properly constituted application, by way of summons, to vary the 1st Order Nisi at all. By virtue of Order 42, rule 5B(6), the 1st Order Nisi became absolute on 17 August 2015. What counsel stated in [2] of his written submissions is of course not a properly constituted application as such. Even if one were to overlook the requirement for a summons and treat it as an application to vary the 1st Order Nisi, it is in any event too late. For it has already become absolute on 17 August 2015. 6.The plaintiff is bound by what it sought by way of the August Summons. It may apply to vary the 2nd Order Nisi only. Mr Lam Mo Chiu of the plaintiff devoted his affirmation, which we have read de bene esse, to the matters that he relied on to vary the 1st Order Nisi. They are irrelevant to the costs of the appeal. Likewise, in his written submissions, Mr Cheung for the plaintiff focused principally on the 1st Order Nisi. He did not make any separate submissions on the 2nd Order Nisi. It seems that the only point he took was that the normal rule that costs would follow the event may be departed from if there are exceptional circumstances. However, he has failed to identify any exceptional circumstances, and we have seen none, which justify a departure from the normal rule of costs following the event for the costs of the appeal. The application to vary the 2nd Order Nisi fails. 7.For the above reasons we dismiss both the August Summons and the September Summons. We further order the plaintiff to pay the defendant the costs of the Summonses. The defendant shall lodge his skeleton bill of costs within 14 days. The plaintiff shall lodge his statement of opposition (limited to two A4 pages), if any, within the next 7 days. We will then assess the costs summarily on paper.
Ms Kitty Tsang, instructed by Tang & Lee, for the defendant/appellant Mr YL Cheung, instructed by SK Lam, Alfred Chan & Co, for the plaintiff/respondent |
Other judgments that cite this case
Further hearings and rulings under CACV 27/2015