Wong Tak Man, Stephen and Another v. Cheung Siu Fai also known as Dickson Cheung and Another

HCMP 1431/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1431 OF 2012

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DECISION ON COSTS
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1.In my judgment on the originating summons handed down on 2 November 2015, I made an order nisi that the trustees in bankruptcy do pay the respondents the costs of the proceedings. The respondents have applied to vary the order in their favour so that (a) there be a certificate for two counsel, and (b) their costs be taxed and paid by the trustees on an indemnity basis.

2.Insofar as a certificate is necessary to enable the respondents to have the costs of two counsel, I consider that it should be granted, despite the trustees’ objection.  The case was of some complexity, the papers voluminous and the trial took 6 days.  The claim was to impugn 46 payments which span a period of 5 years in a total sum of over $38 million.  There were factual as well as expert witnesses.  The expert evidence in particular was quite involved.  To engage leading and junior counsel for the purpose of the trial was in my view justified.

3.There is in my opinion no warrant for costs to be taxed other than on the usual party and party basis.  True it is that the trustees have lost, and that means they have to bear the usual consequence of costs following the event, as I have ordered, but there are no special circumstances such as to call for an order of costs on a higher basis.  In my judgment I have made no finding of bad faith or ulterior motive on the part of the trustees, which is now alleged by the respondents.  Further, Poon J (as he then was) had in March 2013 dismissed the respondents’ application to strike out the trustees’ claims, showing that their claims, albeit ultimately unsuccessful, could not be said to be frivolous or vexatious.  Although the respondents have prevailed in the outcome I have not rejected each and every point raised by the trustees.  There is no wrongful conduct that deserves condemnation by way of an order for indemnity costs.  Nor do I think that the fact that the respondents had invited the trustees to withdraw their claim is a special feature that supports the variation sought.

4.For these reasons I would grant the respondents a certificate for two counsel but their application is otherwise rejected.  As both parties are partly successful there will be no order as to the costs of this application.

Written Submissions by Mr. Thomas Wong, instructed by Eversheds, for the applicant

Written Submissions by Deacons, for the 1^st and 2^nd respondents