King's Glory Educational Centre Ltd v. Wong Man Chi (Alias Mia Wong) and Another

HCA 1884/2016

[2018] HKCFI 466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1884 OF 2016

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DECISION

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1.I will now give my decision in this matter. I make an order that the same be transcribed and that copies be provided to the parties.

2.This is an appeal against a costs order made by Master Elaine Liu on 9 November 2017 involving an application by the plaintiff for leave to file and serve further and better particulars of its statement of claim.  The Master dismissed the summons and made no order as to costs. 

3.The dispute between the parties concerns a cooperation agreement involving the provision of tutoring services to be provided by the defendants to the plaintiff.  The plaintiff alleges breaches of that agreement and claims damages.  Initially, the plaintiff failed to particularise its damages and when it eventually did so, it did by way of voluntary further and better particulars. 

4.The defendants objected to these particulars, not, it is important to emphasise, on grounds relating to the substance of the particulars, but on form only, contending the same should be reflected in the statement of claim rather than by way of further and better particulars.  As such, the plaintiff was compelled to take out a summons before the Master. 

5.The Master, having rightly, in my view, described the application as being to a certain extent a waste of everybody’s time, dismissed the plaintiff’s application simply on case management grounds that it would be more effective to have the particulars included in the statement of claim.  She then gave leave to amend the pleadings and made no order as to costs. 

6.Today, Mr Lau, on behalf of the defendants, says that the Master’s costs order was unreasonable.  It is well established that a judge will not allow an appeal from a Master’s costs order unless it is unreasonable or the Master has erred in law. 

7.The gravamen of Mr Lau’s complaint is that the Master should have considered the correspondence between the parties and then attributed blame to the plaintiff and then in consequence have awarded costs to the defendants. 

8.However, upon conducting an analysis of the transcript of what the Master in fact, said, and with the assistance of counsel today, it appears that the Master’s approach was as follows:

(i)   The Master did read and consider the relevant correspondence. 

(ii)   Having done so, the Master reached conclusions that:

(a)   she would not attribute blame to anyone;

(b)   in fact, no-one may be at fault;

(c)   the plaintiff’s application would be dismissed simply because, from a case management perspective, it would be more effective to have everything in one document, being the statement of claim;

(d)   then gave leave to amend the statement of claim. 

(iii)   That in the circumstances, a fair order would be one of no order as to costs. 

9.Mr Lau accepts that the above analysis is correct, but still maintains that the costs order is unreasonable maintaining there was no fault on his side.  With respect, I disagree. 

10.It may well be that the plaintiff should have provided particulars at an earlier time.  However, once it did so, and there being no objection by the defendants to the substance of these particulars, it is questionable as to why the defendants should have objected to the filing of these particulars.  I agree with the Master that to some extent this was a waste of time. 

11.In my view the Master’s order was, in the circumstances set out above, an impeccable one.  Having fully considered the relevant correspondence, she was perfectly entitled to decline to attribute blame to anyone and to make the order she did.  The defendants’ appeal is, accordingly, dismissed. 

12.As to costs, the plaintiff has applied for indemnity costs on the basis that this appeal was wholly devoid of merit, being scandalous andvexatious.  Mr Lau, on behalf of the defendants, contests this on the basis that the defendants were simply contesting and questioning the Master’s approach. 

13.Appeals against costs orders made by Masters are not to be encouraged and, in appropriate circumstances, indemnity costs orders should be made.  However, the Master here, in fact dismissed the plaintiff’s application and, in my view, it was not totally without merit for the defendants to question the approach then adopted by the Master with regard to costs.  As such, I decline an order of indemnity costs. The plaintiff will have its costs of and occasioned by this appeal, to be taxed if not agreed. 

14.So the order I make is that:

(i) the appeal is dismissed; and

(ii) costs of and occasioned by this appeal be to the plaintiff, to be taxed if not agreed. 

Mr Simon Wong, instructed by Oldham, Li & Nie, for the plaintiff

Mr Roland Lau, instructed by Chan Ching Man & Co, for the defendants