Yuen Oi Yee Lisa and Another v. Ngai Ngok Pang and Another

HCMP 2155/2018

[2019] HKCFI 2604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2155 OF 2018

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D E C I S I O N

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1.There are 2 summonses before this court:

(1)     The Plaintiffs’ 1^st summons dated 12 September 2019 to vary the costs order nisi in favor of the 2^nd Defendant Madam Ngai pursuant to this court’s directions dated 2 August 2019.

(2)     The Plaintiffs’ 2^nd summons dated 13 September 2019 for leave to appeal against the costs order.

1^st Summons to vary costs order nisi

2.On 30 July 2019, this court gave leave to the Plaintiffs to withdraw their claim against Madam Ngai Yu Ling Mony with an order nisi for costs to be borne by the Plaintiffs.

3.By a fax dated 31 July 2019, the Plaintiffs sought to vary the costs order nisi.  This court wrote back on 2 August 2019 directing the Plaintiffs to take out a summons.

4.The Plaintiffs took out a summons to vary only on 12 September 2019. 

5.The time for seeking variation of a costs order nisi expired on 13 August 2019.  The Plaintiffs were one month out of time.

6.The Plaintiffs’ explanation for the delay was that they were out of Hong Kong and returned only on 13 August 2019. 

7.Even accepting the explanation to be true, the fact was that the Plaintiffs had knowledge of the costs order nisi before departure from Hong Kong.  They had no explanation for the one-month delay from 13 August.

8.Further, the costs order was made because the Plaintiffs withdrew their claim against Madam Ngai.  Eventually, having considered the fact that Madam Ngai had not filed an acknowledgement of service and had not applied for summary assessment of costs, on 2 September 2019, this court did not order the Plaintiffs to pay a cent of costs of Madam Ngai.  The application for variation of a costs order nisi has no merits.

9.For the reasons given, I decline to extend time and dismiss the 1^st summons.  There be no order as to costs as Madam Yuen had not responded.

2^nd Summons dated 13 September 2019 for leave to appeal against this Court’s costs order of 2 September 2019

10.On 2 September 2019, this court did summary assessment of costs and ordered the Plaintiffs to pay costs of $6,400 to Mr Ngai Ngok Pang; and did not order costs in favour of Madam Ngai Yu Ling.

11.Costs are in the discretion of the court.  The Court of Appeal will not interfere with the exercise of a judge’s discretion in the award of costs unless it was shown that she failed to exercise the discretion or exercised it upon a false principle, or did not exercise it judicially or the exercise of discretion was demonstrably flawed: Hong Kong Civil Procedure 2019, Vol 1, §62/2/11.

12.Summary assessment is to save time and the court adopts a broad-brush approach.  Reasons have been given for awarding the quantum of costs.  Madam Yuen has not even alleged that this court fell into error of principle as described in the preceding paragraph.  The intended appeal has no reasonable prospect of success.  The 2^nd summons is dismissed.

Costs on both summonses

13.On 20 September 2019, I directed that the Defendants were not required to lodge and serve submissions in response to the 2 summonses but were at liberty to file a statement of costs. 

14.In fact, Mr Ngai Ngok Pang had prepared a set of written submission dated 19 September in response to the 2 summonses (i) before this court’s directions in the preceding paragraph; and (ii) even before the Plaintiffs had lodged theirs.  The contents of Mr Ngai’s written submission were largely irrelevant to the 2 summonses.  Mr Ngai even dealt with the 1^st summons when it did not concern him, so he should not get costs on it.

15.Accordingly, Mr Ngai will only be granted costs for perusal of the Plaintiffs’ 2^nd summons, affirmations, written submissions, this court’s order relating to this summons and a small amount of costs for those parts of his written submission that are relevant. 

16.I order the Plaintiffs to pay the 1^st Defendant, Mr Ngai Ngok Pang, costs of $1,000 for the 2^nd summons.

The Plaintiffs were not represented and filed written submission

The Defendants were not represented and the 1^st Defendant filed written submission