Chan Man Shun v. Sze Ching Lok

CACV 47/2019

[2020] HKCA 731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 47 OF 2019

(ON APPEAL FROM HCA NO. 1170 OF 2014)

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DECISION
ON
ASSESSMENT OF COSTS

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Hon Chu JA giving the decision of the Court:

1.By our judgment handed down on 11 June 2020[1], we ordered the defendant to provide security for the plaintiff’s costs in this appeal in the sum of $150,000 by making payment into court within 30 days, and made no order as to the costs of the application.  We further ordered that in default of the defendant giving security as ordered, this appeal will stand dismissed out of court without further order with costs of the appeal to be paid by the defendant to the plaintiff.

2.The defendant failed to provide the security as ordered.  This appeal has accordingly been dismissed, and the defendant is liable to pay the plaintiff the costs of this appeal.

3.Pursuant to our directions given on 28 July 2020, the plaintiff had provided a statement of costs of the appeal for summary assessment.  By letter dated 18 August 2020, the defendant gave notice that he objected to the costs claimed by the plaintiff.

4.Before giving our assessment of the plaintiff’s costs, several points of principle have to be made:

(1) The basis of the assessment is party-and-party such that costs that are proper and necessary will be allowed.

(2) The costs to be assessed are the costs of the appeal, but excluding the costs of the application for security for costs.

(3) The application for security of costs was made at an early stage of the appeal, before the case was set down.

(4) As noted in our judgment, the defendant’s appeal is primarily a challenge of the trial judge’s assessment of credibility and finding of fact.  The plaintiff’s legal team in the appeal was involved in the trial below and should therefore be familiar with the papers and issues involved.

5.Bearing the above in mind, we find the amount claimed for the attendances by the litigation clerk (B2), and communications with client (C1) and counsel (C3) to be on the high side.  Since the plaintiff has not filed a respondent notice or any document in the appeal, other than in the security for costs application, we do not see the basis for including photocopying charges for 500 pages (B1) as well as counsel fee for drafting (E1) as inter partes costs.

6.Having regard to the above and taking a broad brush approach, the plaintiff’s costs of the appeal is summarily assessed at $46,000.    

Kelvin Cheung & Co for the plaintiff.

The defendant, unrepresented, acted in person.