Yeung Chi Wang v. Yeung Chi Wing

DCCJ 4798/2017

[2018] HKDC 1262

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4798 OF 2017

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DECISION ON COSTS

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1.In my Decision dated 31 August 2018 (see [2018] HKDC 1047), I granted summary judgment in favour of the plaintiff for specific performance of Clause 3 of the Settlement Agreement, but gave the defendant unconditional leave to defend in relation to the plaintiff’s claim for an easement by necessity.

2.I further directed the plaintiff to inform the court whether he would wish to proceed to trial with his claim for an easement by necessity.  The plaintiff’s answer was in the affirmative. Parties have then lodged written submissions on costs.  The plaintiff has also provided a costs statement for summary assessment.

3.This is my decision on costs.

4.There can be no doubt that the plaintiff was partly successful in the summary judgment application.  He needed to come to court to secure specific performance of Clause 3 of the Settlement Agreement.  In addition, the defendant has throughout opposed this part of the application and lost.  I am of the view that the plaintiff should be entitled to some costs of the application.

5.At the same time, I have not lost sight of the fact that the “main dish” of the plaintiff’s claim is one for an easement by necessity.  This is apparent from the plaintiff’s desire to proceed to trial with that claim notwithstanding my decision.  Furthermore, some of the arguments advanced by the plaintiff at the substantive hearing have not been accepted (some are even not pleaded).  My decision on costs should reflect these matters.

6.In my judgment, it is appropriate for the plaintiff to get 40% of the costs of the application in any event, including the hearing on 9 May 2018, on the District Court scale.  I will conduct a summary assessment of these costs.  The costs statement provided by the plaintiff was stated to relate to “Summary Judgment (on the issue of specific performance of Clause 3 of the Settlement Agreement)” – I assume it means that these costs have been segregated from the costs of the action and the remainder of the application.  On a broad brush basis and extrapolating from the plaintiff’s costs statement, I assess the plaintiff’s costs of the entire application at HK$150,000, such that the defendant’s present costs liability is HK$60,000.  This has to be paid within 14 days: Order 62 rule 9B of the Rules of the District Court (Cap 336H).

7.As to the remaining 60% costs of the application (ie regarding that part of the plaintiff’s claim which I gave unconditional leave to defend), the usual costs order is for costs to be in the cause: White Book 2018 §14/7/13.  For the avoidance of doubt, if the plaintiff should ultimately be successful at trial, then the quantum of the remaining 60% costs of this application will necessarily be bound by my assessment of the 40% costs above, ie those 60% costs would be assessed at HK$90,000 (HK$150,000 x 60%).  On the other hand, if the defendant should ultimately win at trial, his entitlement to 60% of the costs of the application is in no way bound by my assessment above, for the simple reason that I have not summarily assessed the defendant’s costs.  In this situation these 60% costs would have to be taxed if not agreed on a party and party basis and on the District Court scale.  I will also grant a certificate for counsel to the defendant.

8.It is inappropriate for me to make any costs order in relation to the action as it will proceed to trial: White Book 2018 §14/7/10.

Mr David P H Wong of Wong, Hui & Co for the plaintiff

Ms Candy Tang, instructed by Thomas Li & Yu for the defendant