Balram Chainrai v. Kushnir Family (Holdings) Ltd and Others

HCA 1462/2014

[2020] HKCFI 188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1462 OF 2014

_________

_________

____________________

DECISION ON COSTS

____________________

1.On 22 November 2019 I handed down judgment in an appeal against a decision of Master Eliza Chang in which she gave leave to the plaintiff to serve a concurrent Writ of Summons out of the jurisdiction on,amongst others, the 3^rd defendant. I dismissed the appeal.

2.At paragraph 126 of the judgment I ordered, on a nisi basis, that “the 3^rd defendant is to pay the costs of the plaintiff to be taxed if not agreed on a standard basis”.

3.I gave leave for the parties to apply within 7 days of handing down of the judgment to seek to vary the costs order nisi.

4.On 29 November 2019 both the plaintiff and the 3^rd defendant made an application:

(1)  The plaintiff applied for an order that the costs be summarily assessed, with further directions for the plaintiff to file a Summary of Costs and the 3^rd defendant to file his objections, or alternatively for the costs to be taxed forthwith.

(2)  The 3^rd defendant applied to change the word “standard” to the phrase “party and party”, on the basis that there is no such thing as a “standard” basis for costs.

5.I accept the 3^rd defendant’s submission.  My use of the word “standard” was intended to distinguish the basis of taxation from an indemnity cost basis.  I therefore vary the order from a “standard” basis to a “party and party” basis.

6.As to the plaintiff’s application, I note that the 3^rd defendant has not made any submissions in opposition. 

7.The basis of the application is essentially that the 3^rd defendant has, through his various procedural steps, delayed the progress of this action for nearly four years, and that it is, in the circumstances unfair that the plaintiff should be required to bear the costs of the unsuccessful appeal until conclusion of the case.

8.The power to make a summary assessment is set out in Order 62, rule 9A of the Rules of the High Court.  There is little guidance contained within Hong Kong Civil Procedure as to the circumstances in which a summary assessment should be made, and the plaintiff has not produced any authorities which persist.  Hong Kong Civil Procedure quotes Recommendation 88 of the Working Party on Civil Justice Reform as follows:

“ The court should, whenever appropriate (whether as a response to an unwarranted application or unwarranted resistance to an application, with a view to saving costs or otherwise), make a summary assessment of costs when disposing of interlocutory applications.”

9.If that were taken to be the only guidance available it would indicate that a summary assessment should only be made in response to an unwarranted application.  Whilst I have dismissed this application, I do not consider that it was unwarranted.  As will be clear from my judgment, I took the view that the Master was not correct in various aspects, and I decided the matter on a different basis.  It is also correct that many of the propositions which were advanced by the plaintiff have been rejected in my judgment.

10.In addition the application was a complex application, with multifaceted arguments from both sides.  It lasted for a full day and involved four counsel.  I do not expect that the costs incurred are small, and I am, in all the circumstances, not convinced that this is an appropriate case for a summary assessment.

11.Insofar as the timing of the taxation is concerned, that is addressed in Order 62, rule 9D of the Rules of the High Court.  Absent an order for an immediate taxation and payment the costs are to be taxed at the conclusion of the action.

12.I think that there is some merit in the argument that the applications brought by the 3^rd defendant have delayed the swift resolution of this case.  The history is fully set out in my judgment and I do not repeat it.  In my view it is an appropriate case for an order that taxation is to occur forthwith.

13.Therefore I vary my costs order nisi such that it shall read: “the 3^rd defendant is to pay the costs of the plaintiff on a party and party basis to be taxed forthwith if not agreed.”

Written submission from WMC Partners, for the plaintiff

Written submission from Hoosenally & Neo, for the 3^rd defendant