Greater China Capital Inc v. Gbtimes Ltd

HCA 1455/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1455 OF 2015

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Before:Deputy High Court Judge Cooney SC in Chambers

Date of Hearing: 13 June 2017

Date of Decision on costs: 29 August 2017

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DECISION ON COSTS

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1.On 24 March 2017, I handed down my judgment concerning the defendant’s appeal against a Master’s judgment by which he made orders in the plaintiff’s favour for final judgment in the sum of €199,998 and for interlocutory judgment with damages to be assessed for alleged breach of an agreement pursuant to Rules of the High Court, Order 14, rule 1.

2.I allowed the appeal and dismissed the plaintiff’s application and gave the defendant unconditional leave to defend.  I made an order nisi that the plaintiff is to pay the defendant’s costs of the plaintiff’s Order 14 application for summary judgment before the Master.  I made an order nisi that the plaintiff is to pay the defendant’s costs of the appeal, to be taxed if not agreed.

3.By an amended summons, dated 25 May 2017, the plaintiff applied for orders to vary both my costs orders so that costs are costs in the cause.

4.By a summons, dated 6 April 2017, the defendant applied for orders to vary my costs orders to provide that such costs are to be taxed and paid forthwith if not agreed, alternatively to be assessed under Order 62, rule 9A, with certificate for two counsel.

5.I made various orders and these are brief reasons for those orders.

The plaintiff’s summons

6.Turning first to the costs before the Master.  When I dismissed the application and made the order nisi that the plaintiff pay the defendant’s costs, I did so on the basis of the usual rule that costs follow the event and not as an exercise of the power given by Order 14, rule 7. 

7.Having reconsidered my order nisi, I do not consider I should exercise the powers under Order 14, rule 7.  Hong Kong Civil Procedure 2017, Vol 1, para 14/7/1 states that the power to dismiss with costs is salutary and its express statement is intended to discourage the misuse of Order 14 proceedings.  Misuse is not to be equated with abuse and although the circumstances in which Order 14, rule 7 should be applied cannot be defined, the authorities cited to me indicated that Order 14, rule 7 has been applied to applications described as “hopeless” or applications in which it is abundantly clear that there was a question in dispute which ought to be tried.

8.I did not form the view that the plaintiff had misused these proceedings. There were extensive submissions and argument made for both sides and many references to evidence.  I reserved my judgment and, after careful consideration, I allowed the appeal for the reasons given in my judgment.

9.Accordingly, I ordered that the costs order nisi made by me in paragraph 61 of my judgment be varied so that the costs of the plaintiff’s Order 14 application for summary judgment before Master S Kwang be costs in the cause, with a certificate for counsel.

10.As the defendant succeeded on the appeal, I considered that costs should be in the event of the appeal and I did not vary my costs order nisi set out in paragraph 62 of my judgment.

11.I ordered that the defendant pay the plaintiff’s costs of the plaintiff’s amended summons.

The defendant’s summons

12.I do not see any factors which indicate that costs of the appeal should be taxed at an earlier stage and, hence, I declined to order that costs be paid forthwith.

13.This is not a matter which warrants a certificate for two counsel and I declined to provide a certificate.  Without dealing with each of counsel’s submissions regarding a certificate, although submissions were extensive and there were many references to evidence, in my view, this was an appeal which could have been presented by a single counsel.

14.The defendant sought leave to file and serve its Amended Defence and Counterclaim within seven days from the date of the Order made herein and leave for the plaintiff to file and serve a Reply and Defence to the Amended Defence and Counterclaim within 14 days after service of the Amended Defence and Counterclaim.  These orders were not opposed and I made an order in terms of paragraphs 3 and 4 of the defendant’s summons.

15.I ordered that the defendant pay the plaintiff the costs of the defendant’s summons.

Summary assessment

16.Consequent upon the costs orders set out in paragraphs 11 and 15 above, I assessed the plaintiff’s costs at $67,925. 

Mr Edward Alder, instructed by Hill Dickinson Hong Kong, for the plaintiff

Mr Tim Kwok and Ms Nicole Chun, instructed by Kenneth C C Man & Co, for the defendant