Zhejiang Provincial Railway Investment International Trade Co., Ltd v. HK Zexin Resources Co., Ltd

HCA 3243/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3243 of 2016

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DECISION
ON VARIATION OF COSTS ORDER NISI

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1.By §28 of my Decision handed down on 8 September 2017, I made an order nisi under Order 42, rule 5B(6) of the Rules of the High Court, Cap 4A, that ½ the costs of the defendant be taxed (if not agreed) and paid by the plaintiff to the defendant, with certificate for 2 counsel.

2.By summons issued on 19 September 2017, the plaintiff applied to vary the costs order nisi as:

“50% of the cost of and incidental to the Plaintiff’s application by way of Summons dated 6 January 2017 as amended by the Summons dated 10 May 2017 be to the Plaintiff, to be taxed if not agreed.”

3.Mr Richard Zimmern, counsel for the plaintiff, drew my attention to the following:

(1)   At the call over hearing of the Bankers Book Summons on 13 January 2017, the defendant objected to the application and the Court gave directions on the filing and service of evidence and on the hearing of the Summons;

(2)   On 9 February 2017, the defendant sought an extension of time to file its evidence “in opposition”.  The plaintiff agreed to a 14-day extension which was granted by consent;

(3)   By Summons issued on 6 March 2017, the plaintiff applied for an unless order debarring evidence in opposition unless provided within 7 days.  The defendant consented to this summons.

(4)   In the event, the defendant did not file any evidence in opposition.

(5)   By letter dated 14 May 2017, the defendant commented on the draft index of the hearing bundle.

(6)   The plaintiff filed and served its submissions on 18 May 2017.

(7)   The defendant filed and served its submissions on 19 May 2017.

(8)   The hearing before me was on 23 May 2017.

4.The plaintiff submitted that by 18 May 2017 when the plaintiff filed and served its written submissions, the defendant’s position was throughout one of opposition.  I accept that the plaintiff would need to attend the 23 May 2017 hearing for a bankers book order.  The inherent probabilities are that the plaintiff would have delivered briefs to counsel and incurred their brief fees.

5.The plaintiff accepted that it was not wholly successful and suggested a reduction of 50% as provided in its variation summons.  I accept the plaintiff’s concession.

6.The plaintiff asked for an order in terms of its variation summons with costs of 19 October 2017 to the plaintiff, to be taxed if not agreed.  I make an order in terms as sought by the plaintiff and certify fit for 2 counsel for the hearing on 23 May 2017.

Mr Richard Zimmern, instructed by Reynolds Porter Chamberlain, for the plaintiff

The defendant, absent and unrepresented