Ausyear Ltd v. Fong Wing Seng

HCA 2534/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2534 OF 2005

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DECISION
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1.This is the plaintiff’s summons for variation of the costs order I made, and also execution of the costs order be stayed.

2.As regards the application to vary the costs order, in handing down my decision on 27 May dismissing the appeal against the Master’s decision, I gave leave to the defendant to defend, and I gave directions for the filing of amended defence by the defendant. 

3.In today’s application for variation of the costs order, the plaintiff argues that the sum awarded by me as to costs, ie $80,000, should be reduced, or there be an order for costs to D2 in any event, rather than summarily dismissed. 

4.In respect of the first argument, Ms Herbert has purportedly reviewed the reasons given by me in coming to the decision.  She pointed out, rightly, that this court had made negative comments on the defence in paragraph 33 of the decision, and that leave had been granted on the basis that there were features in the case that were disturbing and inconsistent with D2 owing the plaintiff money (paragraph 47).  A substantial amount of time had been spent on dealing with matters in the defence that defied logic.   

5.On the other hand, this court had actually also considered the plaintiff’s case in coming to the decision.  For example, in paragraph 35, this court commented on the delay of the plaintiff in taking out the Order 14 summons, and some post writ conduct of Mr Kwok which might have some truth in the matter. 

6.This court took into the account the whole matrix, not only of the defendant’s version, but also the plaintiff’s, and this apparently had been taken into account when I came to the summary assessment of costs. 

7.I therefore do not see any reason advanced today that can convince me to adjust the costs that I have summarily assessed. 

8.Insofar as the suggestion that costs should be in any event, and not forthwith, Ms Herbert suggests that there is a real possibility of D2 not being successful at the trial, and then the plaintiff on the current costs order would have paid out sums in respect of an interlocutory matter that it cannot offset against the judgment or costs award later given.

9.This, with respect, is not the right test for costs in the present matter.  At the hearing of the Order 14 application before the learned Master, the learned Master had already made an order for costs in the cause, for part of the application, and costs to D2 as to part.

10.The costs order made in the present case is to discourage unnecessary appeals.  One must not lose sight of the fact that it was the learned Master’s view that the defendant should have leave to defend the case, and hence the trial should have gone forth from there instead of having the present appeal.

11.Despite the persuasive arguments of Ms Herbert, I have not seen matters which I have failed to take into account in coming to the assessment of costs when I last made my decision.  I therefore decline to vary the costs order made by me, and it shall become a costs order absolute. 

12.In respect of the application for execution of the costs order to be stayed, that was effectively not pursued, and in my view, rightly, because there is no good reason for execution to be stayed advanced at any stage by the plaintiff.  So the summons is dismissed.  There shall be costs to the 2nd defendant. 

(Discussion re costs)

13.I think $15,000 is more than reasonable, and I make the order accordingly.  Thank you.

(Discussion re solicitor’s fees)

14.I note it down on record that the plaintiff’s solicitors undertake not to charge their client for the costs of preparing the hearing bundle for today, save and except I would allow what would be a copy of my decision and also my order.  I think those are relevant to today’s hearing.  So that would be the wording in the order itself.

Ms Elizabeth Herbert, instructed by Oldham, Li & Nie, for the plaintiff

Ms Chan Wai-ling, of Winnie Leung & Co, for the 2^nd defendant