Glory Sky Finance Ltd v. Chen Jianhua and Another

HCMP 2482/2014

[2018] HKCFI 1358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2482 OF 2014

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Before: Deputy High Court Judge Keith Yeung SC in Chambers

Dates of Written Submissions by the Plaintiff: 6 April and 18 May 2018

Dates of Written Submissions by the Defendants: 26 March and 10 April 2018

Date of Decision on Costs: 15 June 2018

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DECISION ON COSTS

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1.During the hearing on 30 January 2018, I granted the plaintiff leave to withdraw its “cross-appeal”. Subsequently, by my Decision handed down on 15 March 2018, I:

(a)   allowed the plaintiff’s application under P’s Amendment Summons for amendment of P’s Irregularity Summons;

(b)   dismissed the plaintiff’s application under P’s Irregularity Summons as amended for an order to set aside or to amend Master Lo’s Order;

(c)   allowed the plaintiff’s application under P’s Irregularity Summons as amended for relief from sanction imposed for failure to comply with Master Lo’s Order;

(d)   dismissed the Removal Limb of Ds’ Summons, and

(e)   allowed the Payment-in Limb of Ds’ Summons.

In so far as (a) to (d) above were concerned, I in effect confirmed the decisions of Registrar Lung. It was in respect of (e) that I disagreed with the decision of Registrar Lung.  

2.In my Decision, I invited parties to make submissions on costs.  I have since received (1) Ds’ written submissions dated 26 March 2018; (2) P’s written submissions dated 6 April 2018; (3) Ds’ written reply dated10 April 2018; and (4) P’s letter to Court dated 18 May 2018 (together with (i) the transcript of the hearing before Master K Lo on 27 April 2017 and (ii) a letter from the police dated 7 May 2018 concerning the forensic examination of two documents).  It is urged upon me on behalf of the defendants that “P (or P’s legal representative) ought to bear all costs of and occasioned by the various applications heard before Registrar Lung on 29 August 2017, and reheard before DHCJ Keith Yeung SC on 30 January 2018, and also the costs of Ds’ appeal by way of Notice dated 11 September 2017, on an indemnity basis.”  On behalf of the plaintiff, it is submitted that in connection with (a) to (d), Registrar Lung’s costs order that there be no order as to costs should not be disturbed; in respect of (e), there should also be no order as to costs.  I have considered all those submissions.

3.In so far as (a) to (d) set out in paragraph 1 above are concerned, I have confirmed Registrar Lung’s decisions.  The related appeal has in effect been dismissed, and the Removal Limb of Ds’ Summons remained unsuccessful.  Costs following the event is one option.  However, it is also important to bear in mind that it is the plaintiff who was seeking an indulgence, having failed to comply with the Master Lo’s Order.  Having considered the overall fairness of the matter, and without going into detailson blames, I am of the view that the proper order is no order as to costs for both the hearing before Registrar Lung and this Court.

4.In so far as the withdrawal of the “cross-appeal” is concerned, I do not believe that it has any extra costs implications.  I make no order as to costs in that regard.

5.I have allowed the Payment-in Limb of Ds’ Summons.  Costsfollowing the event is one option.  I see no reason, whether in terms of the defendants’ conduct or otherwise, which justifies a different order.  I order that the costs of and incidental to that part of Ds’ Summons, both here and before Registrar Lung, be to the defendants.

6.I am not prepared to order any enhanced basis or to make any wasted costs order.  I have factored everything in when allowing the Payment-in Limb of Ds’ Summons.  The order for payment-in which I have made is in my view an appropriate and sufficient order in all the circumstances of this case. 

7.I therefore order that in respect of the Payment-in Limb of Ds’Summons, the costs of and incidental to the same both before Register Lungand this Court be borne by the plaintiff, to be taxed on a party to party basis if not agreed.  I made no order as to costs in respect of the balance of all other applications.

Written Submissions by Mr Ching Ming Yu, of Ching & Co, for the plaintiff

Written Submissions by Ms Bianca Yu, instructed by Holman Fenwick Willan, for the 1^st and 2^nd defendants