莫懿 v. 宏大香港資產管理有限公司and Others

HCA 897/2018

[2021] HKCFI 3832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 897 OF 2018

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(By original action)

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(By counterclaim)

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Before: Hon K Yeung J in Chambers

Date of Written Submissions and Reply Submissions on Costs by the Plaintiff by original action and the 1^st and 2^nd Defendants by counterclaim: 24 November and 2 December 2021

Date of Written Submissions by the 1^st and 2^nd Defendants by original action and the 1^st and 2^nd Plaintiffs by counterclaim: 29 November 2021

Date of Decision on Costs:  21 December 2021

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DECISION
ON COSTS

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1.By my Decision of 29 October 2021 (the “Decision”)[1], I dismissed Mo’s Summons (the “O.14 Summons”) principally for final judgment[2] against GCAM and Chen. I made a costs order nisi (the “Costs Order Nisi”) that Mo shall bear the costs of and occasioned by the O.14 Summons.

2.By Summons of 12 November 2021, Mo seeks variation of the Costs Order Nisi. He seeks costs in the cause instead.  I have since directed that the matter be dealt with on the papers.  Parties have since filed their respective submissions (L&Y Law Office (“L&Y”) for Mo, and Tanner de Witt (“TdW”) for GCAM and Chen).

3.L&Y submits that costs are in the discretion of the court. Paragraph 14/7/6 of the Hong Kong Civil Procedure 2021 and Order 62 rule 4 have been cited to me, which I have considered.

4.L&Y relies on 2 grounds. 

5.The first ground L&Y relies on is that the affirmations filed by the parties (as set out in §22 of the Decision) “substantially overlapped with the materials to be relied on by parties in the preparation for trial”, that those factual matters “will be substantially adopted by the parties at trial”, that the related costs “shall form parts of the costs of the main proceedings”, so that “it would be unfair for [Mo] to finance [GCAM’s and Chen’s] costs in the trial.”

6.As TdW have pointed out, which L&Y accept in their reply, the affirmations used during the hearing will unlikely to be referred to during the trial.  All other costs occasioned by the O.14 Summons (e.g. attending on Mo’s legal advisers, on counsel, attending court, etc) have already been incurred and are not related to the preparation of any trial which may take place in the future.

7.I accept also TdW’s submissions that if any part of the costs incurred on the O.14 Summons turn out to actually form part of the costs of the main action, the matter may be dealt with and addressed at the time when the costs of the main action are assessed or taxed.

8.L&Y next contends that the case is a straightforward one of contractual dispute, it was reasonable for P to pursue the O.14 Summons, and that P pursued the same in a reasonable and expedient manner.

9.In that regard, I simply repeat §35 of the Decision.

10.I refuse Mo’s application for variation.  The Costs Order Nisi is made absolute.

11.I order that Mo shall bear the costs of this application for variation.

12.I direct that:

(a)  GCAM and Chen shall prepare a fresh Statement of Costs including the costs of both the O.14 Summons and the present application for variation, to be filed and served within 7 days from the date hereof;

(b)  Mo shall file and serve his objections if any within 7 days thereafter;

(c)  GCAM and Chen shall file and serve their reply within 3 days thereafter; and

(d)  the costs may then be summarily assessed on the papers.

Written Submissions and Reply Submissions on Costs by L&Y Law Office, for the Plaintiff by original action and the 1^st and 2^nd Defendants by counterclaim

Written Submissions by Tanner De Witt, for the 1^st and 2^nd Defendants by original action and the 1^st and 2^nd Plaintiffs by counterclaim