Sne Engineering Co Ltd v. Chim Kee Machinery Co Ltd

HCA 2025/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2025 of 2012

__________________

__________________

__________________________________________

DECISION ON COSTS AND INTEREST

__________________________________________

1.On 5 April 2016 the defendant issued a summons seeking a variation of the court’s nisi order for costs and interest contained in the judgment handed down on 24 March 2016 following a 6 day trial which concluded on 9 March 2016.

2.By consent of the parties the matter has been dealt with “on paper” pursuant to the court’s direction.

3.I have now read and considered (i) the said summons, (ii) the parties’ written submissions thereon, (iii) the relevant correspondence between the parties, (iv) Order 22 and Order 42 RHC and (v) (in part) the authorities submitted by both parties in support.

4.The following are, inter alia, relevant:

(a)  the defendant made a sanctioned offer dated 30 October 2015 to accept HK$9 million from the plaintiff “in full and final settlement” in an attempt to avoid a trial.  The offer was not accepted.  After trial the defendant succeeded in being awarded HK$8,365,757 damages plus interest at 1% over HSBC base rate from 1 August 2012.  The result was that the defendant “did better” than the sactioned offer by over HK$1 million, once interest is included.  The plaintiff’s submission that the defendant failed to “do better” than the sanctioned offer is without merit (Order 22 rule 26);

(b)  I have given due weight to the matters set out in paragraph 6(a) – 6(j) of the defendant’s written submissions;

(c)  Order 22 rule 24(2), (3) and (4) applies;

(d)  Order 59 rule 13(1)(a) applies.  I decline the invitation to stay this matter pending appeal; and

(e)  save as specifically provided, matters of costs and interest are within the court’s discretion.

5.I make the following orders:

(i)     the plaintiff do pay the defendant’s costs of this action including any costs reserved up to the 27 November 2015, on a party and party basis, with certificate for two counsel, to be taxed if not agreed;

(ii)    the plaintiff do pay the defendant’s costs of this action, including any costs reserved from 28 November 2015 up to the date of this Order, save and except the costs for the joinder application taken out by the plaintiff dated 20 January 2016, on an indemnity basis, with certificate for two counsel to be taxed if not agreed;

(iii)   the plaintiff do pay the defendant the sum of HK$8,365,757 plus interest at 1% over HSBC base rate from 1 August 2012 to 27 November 2015 on the sum of HK$8,115,757; interest at 1% over HSBC base rate from 1 November 2012 to 27 November 2015 on the sum of HK$250,000; and interest at 1% above the judgment rate on HK$8,365,757 from 28 November 2015 up to the date of payment;

(iv)   the plaintiff do pay the defendant interest on the defendant’s costs incurred from 28 November 2015 save and except the costs of the joinder application dated 20 January 2016 at 1% above judgment rate from judgment until payment; and

(v)    the cost of this application be to the defendant on a party and party basis to be taxed if not agreed.

Written submissions by Mr Billy K Y Kwan, instructed by Leung &   Associates, for the plaintiff

Written submissions by Tsui & Co, Solicitors, for the defendant