Hui Tung v. World Win Consultants Ltd
Read the full judgment text of DCCJ 428/2021 on BabelCite. This District Court judgment was delivered on 31 March 2022.
1. This is the defendant’s application for leave to appeal against my costs order (“Costs Order”) made after dismissing plaintiff’s Order 14 application (“the Decision”). The Costs Order made was for costs to be in the cause of the Action.
Cited by 2 cases
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DCCJ 428/2021 [2022] HKDC 155 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 428 OF 2021 ------------------------- BETWEEN
------------------------- Before: Deputy District Judge Tracy Chan in Chambers (Open to Public) Date of Hearing: 8 February 2022 Date of Decision: 31 March 2022 --------------------- DECISION --------------------- 1.This is the defendant’s application for leave to appeal against my costs order (“Costs Order”) made after dismissing plaintiff’s Order 14 application (“the Decision”). The Costs Order made was for costs to be in the cause of the Action. 2.It is the defendant’s case that the Costs Order was wrong in principle. In support, it is set out in the Intended Notice of Appeal that when exercising its discretion the court has erred in the following regards:-
3.Perhaps it is worth a few words to clarify the mistake which called for the corrigendum before parties’ submissions on this appeal are discussed. In paragraph 28 of the Decision I said “The application is dismissed with costs. Having heard submissions on costs I find the appropriate order is costs be in the cause with counsel certificate.” Not surprisingly the plaintiff wrote to seek clarification. Upon checking the Decision, it was found that the phrase “with costs” was mistakenly not deleted after I had decided to make an order for costs be in the cause of the Action. The defendant then took out an application for leave to appeal against the Costs Order. 4.Mr Lo for the plaintiff said I had a second chance to think it over and the Costs Order appeared in the Corrigendum must be a well-considered one. It has to be pointed out that rightly or wrongly, my decision on costs was made before the Decision was handed down. It was plainly a mistake which skipped my attention. Upon being informed of the same I immediately directed a corrigendum to be issued accordingly to reflect my original decision to award costs in the cause of the Action. 5.Mr Lam has raised 3 Grounds in support of his leave application. I shall deal with Ground 3 first. Ground 3 6.Mr Lam submitted the usual order upon dismissing an Order 14 application should be with costs and to be paid forthwith. He also pointed out to the court, with the help of a copy of transcript of the Summons hearing (“Transcript”)[1] , that at the conclusion of the hearing of the Summons, Mr Lo submitted that the usual costs order to be awarded should be “costs in the cause” and “that is quite a usual order”. Mr Lam submitted that Mr Lo was retracting his stance at the present hearing for leave. 7.Mr Lo said that the court in dismissing an Order 14 application is not bound to order costs against the unsuccessful applicant. Instead, the court has a wide discretion to make other costs order that it thinks fit. He referred the court to read Order 62 rule 5 which directs the court to have regard to the conduct of the parties when considering what would be an appropriate costs order. He gave no clear reply to Mr Lam’s submission on his retracting his position. 8.In reply, Mr Lam said Order 62 should not be engaged as this is an interlocutory application and the court is not dealing with costs order after trial. Further, if conduct was to be considered, the conduct of the plaintiff should be considered as well. 9.I have read the Transcript. Mr Lo did not only submit that “costs in the cause” in Order 14 Application is quite a usual costs, in fact he said “we proposed that the costs should be in the cause in this particular application.” This submission became clear to the court with the assistance of the Transcripts. This had not been given due weight by the court when it exercised its discretion. I agree with Mr Lam that there is a reasonable prospect of success on this Ground, leave is therefore granted. Ground 1 10.Mr Lam submitted that this is a case outside Order14 as it falls under Order 14, rule 7:-
11.Mr Lam said the defence has been made out clearly. Paragraph 8(18) of the Defence set out their criticism on the Report saying that Ms Mak was not the one who conducted the investigation and that it had not identified the source of the seepage. In fact in his oral submission made before the court at the Summary Judgment Application, Mr Lam brought up the point of non-compliance of Order 38 on the part of Ms Mak if the Report is treated as expert evidence. His conclusion is therefore that the evidence in the Report could not be considered by the court at the interlocutory stage for its inadequacy as a statement of fact or for its non-compliance with Order 35. I would say that the defence case in resisting the Application is made stronger at the hearing. I do not agree that the application is outside Order14 as stipulated in Order 14 rule 7. I do not agree that the plaintiff’s case was inherently unfit for summary judgment. Leave to appeal under Ground 1 is refused. Ground 2 12.Mr Lam took a point that there was inherent defect in the Summons as the plaintiff has failed to verify the facts to be relied on. He said the location of source of seepage in Unit H and the Affected Area in Unit J were marked on a plan attached to Mr Hui’s affirmation (“HT-2”)[2]. It was however different from the plans attached to the Statement of Claim[3] and the one prepared by Ms Mak[4]. In reply Mr Lo said that it was clearly a mistake on the markings in HT-2. Mr Lam said if it was a mistake, it should be amended but it was not, nor was there any explanation given as to why this mistake occurred. 13.Having read the plans and considered parties submissions, I agree with Mr Lo’s submission that it was a mistake which should not have caused any confusion in the Application. Further, this point has not been taken by Mr Lam at the hearing of the Application and the court has not been invited to take note of this inconsistency. Even if this point was taken earlier, this would not be taken in the defendant’s favour and would not have affected the exercise of the court’s discretion on costs. There being no reasonable prospect of success, leave is not granted for Ground 2. Conclusion 14.For reasons set out above, leave is granted to the defendant to appeal against the Costs Order on Ground 3 as set out in the Draft Notice of Appeal. 15.Costs of the leave application be in the cause of the appeal.
Mr Lo Anthony P.W., instructed by Y.T. Szeto & Co, for the plaintiff Mr Lam Abel leading Mr Koon Jay, instructed by Ho & Tam, for the defendant | |||||||||||||
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Further hearings and rulings under DCCJ 428/2021