Lehner Ewald Stephan v. Pui Tsan Po and Others

DCMP 1310/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1310 OF 2016

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DECISION

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INTRODUCTION

1.By my judgment handed down on 30 September 2016, I decided in favour of the plaintiff and made an order nisi that the defendants shall pay the plaintiff costs of these proceedings.

2.By a summons dated 13 October 2016, the defendants applied to vary the said costs order nisi.

3.The plaintiff opposed the application.

Defendants’ application

4.The defendants’ application under the summons is unusually long-winded.  In short, the defendants are asking that the decision on costs be deferred after the determination of the cause of the water seepage and the hearing of evidence of the parties including their expert witnesses.

Discussion

5.Counsel for both parties has put forward their respective arguments for and against the application.  Mr Kenneth Shum, counsel for the defendants, even submitted that the hearing of the summons should be adjourned until the defendant’s expert report is prepared.

6.In the light of Order 62 rule 3(12) of the Rules of the District Court (“RDC”), I think the application can be disposed of quickly.

7.Order 62 rule 3(12) of RDC provides that:-

“(12) Where an application is made in accordance with Order 24, rule 7A or Order 29, rule 7A, for an order under section 47A, 47B or 47D of the Ordinance, the person against whom the order is sought shall be entitled, unless the Court otherwise directs, to his costs of and incidental to the application and of complying with any order made thereon and he may, after giving the applicant 7 days’ notice of his intention to do so, tax such costs and if they are not paid within 4 days after taxation, sign judgment for them.”

8.Section 47A of the District Court Ordinance (“DCO”) gives the court power to order pre-action discovery of documents against a person who is likely to be a party to the proceedings.  Section 47B of DCO gives the court power to order discovery of documents against a non-party.  Section 47D of DCO gives the court power to order pre-action inspection, photographing, preservation, custody and detention of property; taking of samples of the said property and the carrying out of experiment on or with the said property.

9.Hence, the intention of the legislation is that in the absence of special circumstances, the applicant of an application under ss 47A, 47B and 47D of DCO should bear the respondent’s costs of and incidental to the application and of complying with any order made thereon.  This is a departure from the general rule that costs to follow the event.

10.Mr David Fong, counsel for the plaintiff, submitted that there should be a comma after “the person” in the sub-rule and reading the whole sentence, his interpretation is that “the person” is referring to the applicant who made the application.  Mr Fong added that this interpretation is in line with the theme of Order 62 rule 3 that costs should follow the event.

11.I am afraid I cannot accept Mr Fong’s submission.  In interpreting the rule, the court should look for its plain and natural meaning.  In my view, “the person against whom the order is sought” is plainly referring to the person who is subjected to the application rather than the one making the application.  The adding of a comma, as Mr Fong suggests, does not have the effect of reversing the meaning of the plain language of the rule.  In any event, the court must interpret the rule as it stands.  The addition of punctuation is inappropriate.

12.Mr Shum submitted that the proper costs order should be no order as to costs up to 30 September 2016, ie the date of delivery of the judgment.  Thereafter, the defendants should be entitled to costs.  When asked by this court, Mr Shum confirmed that that was the position of the defendants in the light of Order 62 rule 3(12) of RDC.

13.In stating his position, it seems that Mr Shum is ignoring the effect of the words “entitled, unless the Court otherwise directs, to his costs of and incidental to the application and of complying with any order made thereon” in the rule.  Despite the stated position of the defendants, this court must give effect to the clear meaning of the rule, namely, that the defendants should be entitled to the costs of and incidental to the application and of complying with the order made.

14.Finally, I should consider if special circumstances exist so that the discretion should be exercised against the defendants.

15.In his skeleton argument, Mr Fong complained that the defendants have been uncooperative for a very long time which caused the plaintiff to make the application eventually.  In the proceedings, the defendants made various unfounded allegations against the plaintiff.

16.Firstly, when faced with an uncooperative neighbour, the plaintiff could have decided to take out the application earlier.  Secondly, it is not uncommon for litigants in person to make all sorts of allegations against their opponents.

17.That being the case, I am unable to see any special circumstances that I should exercise my discretion against the defendants.

Conclusion and order

18.For the foregoing reasons, I would vary the costs order nisi to the effect that the plaintiff shall pay the defendants the costs of and incidental to the application and of complying with the order.

Costs of summons

19.Mr Fong complained that the defendants have failed to serve the hearing bundles, dramatis personae, chronology of events, skeleton arguments and list of authorities at least 72 hours before the hearing.  Mr Shum explained that he understood that today is not intended to be the substantive hearing of the summons.  He apologised for the late submission of skeleton argument.

20.Whether the 1^st hearing date of the summons is the substantive hearing depends on the preparation of both parties.  It seems that there is a lack of communication between the parties as to whether they are prepared to proceed to argument today.  In any event, both parties have argued the application before me.

21.The defendants have succeeded in varying the costs order nisi but not on the grounds put forward Mr Shum.  I think it is fair to order that there be no order as to costs of this summons and I so order.

Mr David Fong, instructed by Boase, Cohen & Collins, for the plaintiff.

Mr Kenneth Shum, instructed by Kong & Chang for the 1^st, 2^nd and 3^rd defendants.