Tam Bing Choi and Others v. Hui Sim Kiu and Another

HCA 1091/2018

[2022] HKCFI 986

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1091 OF 2018

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Before: Master Sabrina Ho in Chambers (Open to public)

Date of Hearing: 28 February 2022 (Paper disposal)

Date of Decision: 13 April 2022

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DECISION ON VARIATION OF COSTS ORDER APPLICATION

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A. Introduction

1.On 23 December 2021, I handed down my decision (“the Decision”) on the following Summonses taken out by the Plaintiffs and the Defendants respectively: 

(1)     The Plaintiffs’ Summons dated 9 December 2020;

(2)     The Plaintiffs’ Summons dated 25 June 2021;

(3)     The Defendants’ Summons dated 13 January 2021 to strike out the Plaintiffs’ claim (“the Defendants’ Summons”).

2.With respect to the Defendants’ Summons, I granted an order nisi in paragraph 55 (c) of the Decision that costs of and occasioned by the Defendants’ Summons be paid by the Plaintiffs to the Defendants, to be taxed if not agreed.  

3.By Summons dated 10 January 2022 (“the Variation Summons”), the Defendants seek to vary the costs order nisi to add that costs of the Action be paid by the Plaintiffs to the Defendants, to be taxed if not agreed, with certificate for one counsel.  The proposed addition to the costs order was initially included in paragraph 2 of the Defendants’ Summons.  

4.Upon my directions, the parties’ have filed written submissions for the Variation Summons and I will deal with the Summons on paper.  

5.Unless otherwise stated, I will adopt the abbreviations used in the Decision.  

6.For the reasons set out below, I will allow the Variation Summons save that I will not grant any certificate for counsel for the costs of the Action.  

B.      Discussion

7.It is common ground between the parties that as the Defendants have succeeded in the Defendants’ Summons and struck out the Plaintiffs’ claim, the starting point is that costs should follow the event.  

8.The Plaintiffs accept that they have to pay costs of the Action to the Defendants, but contend that they should only be responsible for 50% of such costs.  The Plaintiffs rely on five grounds to support their contention: see the Plaintiffs’ written submissions dated 22 February 2022 at paragraphs 5-13.  

9.With respect to the first ground, as I have found in the Decision, the Plaintiffs’ claim was struck out because the claim and the Declaratory Reliefs have become academic and have no practical utility after the passage of the New Resolution on 4 March 2018 and the New Council’s approval of the December 17 Meeting on 13 May 2018.  Whether the Plaintiffs commenced the Action in good faith or otherwise, and whether the Plaintiffs were seeking pecuniary benefits in the Action do not alter the fact that the claim in the Action has no practical utility and ought not be pursued.  Hence, the first ground is irrelevant to the costs of the Defendants’ Summons.  

10.Similarly, with respect to the second ground, the reason for the striking out was that the Plaintiffs’ claim for the Declarator Reliefs against both the 1^st Defendant and the 2^nd Defendant have become academic.  The reason for the striking out goes to the nature of the claim, and has nothing to do with whether the 2^nd Defendant should be joined or whether it should actively participate in the Action.  

11.As to the third ground, the Plaintiffs drew my attention to settlement offers dated around June 2018 and 5 July 2020 which they have made to the Defendants: see paragraph 26 of the 2^nd Affidavit of Tam Bing Choi dated 31 January 2022 and “TBC-4” and “TBC-5” exhibited to the above affidavit.  However, the Plaintiffs did not do better in the Action (which has been struck out) than what was offered in the settlement offers.  In particular, in the settlement offers, the Plaintiffs insisted that the Recorded Resolution be rectified according to the version which the Plaintiffs proposed, notwithstanding the New Resolution on 4 March 2018 and the New Council’s endorsement of Recorded Resolution on 13 May 2018.  

12.Moving on to the fourth ground, the censure and sanction which the Church allegedly imposed on the Plaintiffs are irrelevant to the Action and the Defendants’ Summons.  

13.The last ground concerns the Defendants’ timing in taking out the Defendants’ Summons.  The Plaintiffs said that the Defendant had never complained that the Plaintiffs’ claim was academic at the outset, but filed their Defence on 16 October 2018 and only took out the Defendants’ Summons on 13 January 2021.  The Plaintiffs cited Tang Wing Hung Albert formerly known as Tang Shun Tai v Lau Chau Fat [2018] HKCFI 2127 in support of their argument.  

14.Having considered the parties’ respective submissions, I reject the Plaintiffs’ argument under this ground:

(1)     First of all, the Defendants did plead in their Defence that the Plaintiffs’ reliefs serve no purpose due to, inter alia, the passing of the New Resolution on 4 March 2018;  

(2)     Further, Tang Wing Hung Albert is distinguishable from the present case.  In Tang Wing Hung Albert, DHCJ Marlene Ng had already pointed out the issue of the plaintiff’s locus standi in the second pre-trial review.  Nonetheless, the defendant did not take out any striking out application, but asked the Court to allow the plaintiff’s claim and the defendant’s counterclaim to proceed to trial.  In the end, the learned Judge had to strike out the plaintiff’s claim on her own motion.  The learned Judge found that the defendant therein made a considered decision not to challenge the plaintiff’s locus standi or take out a striking out application.  Taking into account the above factors, the learned Judge ordered the plaintiff to pay to the defendant only half of the costs of and occasioned by the plaintiff’s claim.  

(3)     Here, there is no evidence to suggest that the Defendants have made any considered or calculated decision to delay taking out the Defendants’ Summons to strike out the Plaintiff’s claim.  This is not a case where the Plaintiffs completely lack locus standi to pursue the claim.  The ground for striking out in the present case is not as apparent as that in Tang Wing Hung Albert.  While the Defendants could have taken out the Defendants’ Summons earlier, taking into account all the circumstances of the case, I decline to depart from the starting point that costs should follow the event.  

C.      Disposition

15.The costs order for the Defendants’ Summons shall be varied to the following effect: Costs of and occasioned by the Defendants’ Summons to be paid by the Plaintiffs to the Defendants to be taxed if not agreed.  Costs of the Action be paid by the Plaintiffs to the Defendants to be taxed if not agreed.  

16.Costs of and occasioned by the Variation Summons be paid by the Plaintiffs to the Defendants with certificate for one counsel, to be taxed if not agreed. 

Mr Earl Deng, instructed by S C Ho & Co, for the Plaintiffs

Mr Richard Yip, instructed by So, Lung & Associates, for the Defendants