King Lucky Development Ltd and Another v. Niceway Consultants Ltd and Another

HCA 771/2019

[2020] HKCFI 659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 771 OF 2019

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BETWEEN

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D E C I S I O N

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1.By a judgment dated 8 April 2020 (“Judgment”), I dismissed the plaintiffs’ application for an interlocutory injunction and made a cost order nisi that the costs of the application, including the costs of the hearing on 1 November 2019 be to the defendants, to be taxed if not agreed.

2.The defendants applied by summons to vary the costs order nisi seeking: (i) a certificate for two counsel; and (ii) summary assessment pursuant to Order 62 rule 9A of the Rules of the High Court and for the costs to be paid forthwith. The application was going to be heard on 23 April 2020 but that date fell within the General Adjourned Period. The matter was therefore dealt with on paper.

3.Mr Lin for the defendants referred me to a number of authorities making references to my power to order summary assessment of costs in interlocutory applications that are severable and self-contained.  The propositions are trite and I hope I will be forgiven for not repeating them.  He also suggested that the application for interlocutory injunction in this matter was not made properly or reasonably and was totally unwarranted and should be discouraged. References were made to the reasons contained in the Judgment to support his point.

4.The submissions on merits naturally attracted substantive response from Mr Chong for the plaintiffs seeking to persuade me that despite my decision, the application has been properly and reasonably made.  He also submitted that summary assessment is not appropriate as the costs involved are not severable or self-contained because the content of the affirmations used by the parties focused on the merits of the claims and they would in any event be repeated in the witness statements for these proceeding.  Finally, the plaintiffs also expressed concerns on whether they will be able to recover any award of damages or costs at the end of the trial by questioning the financial strength of the defendants.

5.I do not find it necessary to repeat my views on the merits of the application which are set out in the Judgment.  There is also no justification for revisiting the same.  I am also of the view that the application is sufficiently self-contained and that summary assessment is appropriate. Concerns on the financial positions of the defendants is nothing more than speculation and I do not consider them to be relevant.

6.With no disrespect to counsel involved, I am not satisfied that the matter is of a sufficient complexity to justify two counsel.  Detailed submissions were made pointing to various arguments raised before me and it is unnecessary to repeat them again.  Although both sides were represented by two counsel, this is only one of the factors that I have to take into account.

7.To sum up, I am not minded to grant a certificate for two counsel but I am prepared to order summary assessment of costs.  A cost statement is to be filed and served by the defendants by 3pm on 7 May 2020.  Grounds in opposition are to be filed and served by 3pm on 13 May 2020.

8.Both sides ask for costs of this application.  Looking at the matter in the round, I will make no order as to costs in respect of this application.

Mr K M Chong and Ms Vivian Li, instructed by CLY Lawyers, for the 1^st and 2^nd plaintiffs

Mr Kenny C P Lin and Mr Chan Kai Ming Daniel, instructed by Howell & Co, for the 1^st and 2^nd defendants