Song Congying v. Cheng Wai Kin t/a Shing Shun Foreign Currency Exchange Co

HCA 1625/2019

[2021] HKCFI 209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1625 OF 2019

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Before:  Deputy High Court Judge Jin Pao SC in Chambers

Date of Defendant’s Submissions:  8 December 2020

Date of Plaintiff’s Submissions:  22 December 2020

Date of Defendant’s Reply Submissions:  5 January 2021

Date of Decision on Costs: 26 January 2021

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DECISION ON COSTS

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1.On 11 November 2020, I dismissed the Plaintiff’s application for leave to amend her statement of claim. I made a costs order nisi that the Plaintiff pay the costs of the application to the Defendant, to be taxed if not agreed.

2.On 20 November 2020, the Defendant applied to vary the costs order nisi.  The variations sought were essentially to seek indemnity costs and a summary assessment of those costs payable forthwith.  I directed that the application be dealt with by way of paper disposal, and the parties have since filed written submissions.

3.I have carefully considered the matters relied upon by the Defendant in support of the application for indemnity costs.  The various points said to warrant such an order have been set out at length in the Defendant’s written submissions, which I do not repeat. 

4.Taking a global view of the matter, and in the exercise of my discretion, I do not consider that it would be appropriate to order indemnity costs.  Although I concluded in my decision that the amendments were not justified and leave to amend should be refused, I do not consider that the Plaintiff’s conduct in these proceedings was sufficiently serious to justify making an order for indemnity costs.  Many of the points advanced in support of the application, in my view, were valid reasons to explain why the Defendant should receive costs, but not on an indemnity basis.  The fact that I concluded that the introduction of a fresh claim of fraud did not satisfy the stringent requirements applicable to such an averment does not, without more, justify an order for indemnity costs.  In relation to the setting aside the HCSD Judgment, although I concluded that this was disproportionate on the part of the Plaintiff, there was also a lack of satisfactory disclosure of the deposit slip by the Defendant.  I also agree with the Plaintiff that although the application for leave to amend was not made at the earliest opportunity, it was not so late as to warrant indemnity costs.  Overall, and having due regard to the matters complained of by the Defendant, I do not consider that this is an appropriate case for indemnity costs.

5.I consider that this is an appropriate case for summary assessment.  Having regard to the self-contained nature of the application and the amount of costs claimed, I do not consider that an item-by-item taxation after trial would be appropriate. Having reviewed the Defendant’s Statement of Costs, I summarily assess costs at $175,000, which are to be payable by the Plaintiff to the Defendant forthwith.  

6.On the costs of the summons dated 20 November 2020, I make a costs order nisi that there be no order as to costs.  This is in view of the fact that the Defendant failed to obtain indemnity costs, but successfully obtained an order for summary assessment.

Written submissions by Messrs Johnnie Yam, Jacky Lee & Co, for the Plaintiff

Written submissions by Mr Hugh Kam, instructed by Messrs Robertsons, for the Defendant