Dbs Bank (Hong Kong) Ltd v. Guanxiang (HK) Trading Ltd and Tothers

HCMP 1767/2017

[2019] HKCFI 935

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS 1767 OF 2017

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DECISION ON COSTS

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1.On 21 June 2018, I handed down my Decision (the “Decision”) refusing to deal with the matter summarily. I ordered that the case should proceed as if started by Writ and gave certain directions for that purpose. On the issue of costs, I made an order nisi that the 3^rddefendant (“D3”) should have the costs of and occasioned by the hearing.

2.Both the plaintiff (“P”) and D3 have since applied to vary the costs order nisi:

(a)   D3 seeks an order that the costs of and occasioned by the hearing, to be summarily assessed, with certificate for two counsel, and paid by P to D3 forthwith; and

(b)   P seeks an order that the costs of and occasioned by the hearing on 19 April 2018 be in the cause.

3.I have considered the written submissions made to me.  I have considered the authorities cited therein.

4.I repeat what I have observed at paragraphs 50 to 52 of the Decision.  I am of the view that P should have anticipated the factual disputes to be raised by D3, and that P ought not to have sought summary disposal of the matter.  I have considered Hong Kong Civil Procedure 2018§28/8/2.  Whilst it appears that the usual costs order on an order to continue as if by writ is that costs be in the cause, I am of the view that the facts of this case justify the exercise of this Court’s discretion in ordering that D3 should have the costs of and occasioned by the hearing.

5.I have considered the factors set out in Xinyuan Trading Co Ltd v NPH Petrochemical Ltd HCA 18159/1998 and CACV 276/1998 (25 September 2000).  I highlight the following, that no difficult point of law was involved, that the facts were not complex, and no special expertise was required.  I am not satisfied that the case warrants the award of a certificate for two counsel.

6.On the facts of the case, I have already ordered that D3 shouldhave the costs of and occasioned by the hearing (despite what appears to be the usual costs order).  This may be taxed (if not agreed) at the conclusion of the action, as contemplated by Order 62, rule 9D.  This in my view is, overall and in all the circumstances, an appropriate costs order to make.  I refuse to order the costs to be assessed or paid forthwith.

7.I therefore dismiss both applications and make the costs order nisi absolute.  As both applications to vary have been dismissed, I make no order as to costs in respect of those applications.

Written submissions by Mr Michael Lok, instructed by Wilkinson & Grist, for the plaintiff

Written submissions by Mr Alan Kwong and Mr David Fong, instructed by Lau, Kwong & Hung, for the 3^rd defendant