Jsp International S.R.O. v. Alacrity Ltd and Others

HCA 205/2021

[2022] HKCFI 1758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 205 OF 2021

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BETWEEN

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D E C I S I O N

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A. INTRODUCTION

1.By summons of 10th May 2022 (“the Summons”), the 5th Defendant seeks to vary the costs order nisi made in my judgment of 26th April 2022 (“the Judgment”), so that the Plaintiff pays the 5th Defendant’s costs.

2.It will be remembered that the 5th Defendant was not one of the Summonsed Defendants.[1] It is therefore not the case that the starting point is for the Plaintiff to pay the 5th Defendant’s costs.

3.The 5th Defendant says that the Plaintiff’s application for Declaratory Relief was unmeritorious. That may be so, but whilst this would justify depriving the Plaintiff of its costs, it does not necessarily justify a grant of costs in favour of the 5th Defendant. It is necessary to have regard to the circumstances. As I have found in the Judgment, the Plaintiff’s claim for Declaratory Relief failed irrespective of the 5th Defendant’s position. The 5th Defendant itself also now submits that the Plaintiff’s claim for Declaratory Relief was bound to fail, regardless of whether it was opposed or not. Furthermore, as I have noted in the Judgment at paragraph 65.2, the 5th Defendant’s opposition to the Plaintiff’s application was based on numerous points other than prejudice to its position. In these circumstances, I consider that it would not be right for the Plaintiff to pay the 5th Defendant’s costs incurred in mounting such opposition.

4.The 5th Defendant also says that the outcome achieved by the Plaintiff was no better than the 5th Defendant’s previous “offers”. It further says that the Plaintiff’s behaviour was unreasonable, in that despite the 5th Defendant proposing that the Plaintiff withdraw its claim for Declaratory Relief on payment of costs incurred, the Plaintiff did not accept this, thus causing the 5th Defendant to incur further unnecessary costs. At the same time, the 5th Defendant also submits that the Plaintiff’s claim for Declaratory Relief was bound to fail failed irrespective of whether it was opposed, and the 5th Defendant was not party to the application. Accordingly, the 5th Defendant was not bound to put in an appearance to oppose the Plaintiff’s application such that the Plaintiff should be responsible for costs incurred as a result of the 5th Defendant’s choice.

5.Finally, the 5th Defendant says that the Plaintiff’s application was taken out with the ulterior motive of defeating the 5th Defendant’s request for security for costs. I am not able to draw definitive conclusions in this regard on the basis of the material advanced in support of this submission.

6.I therefore dismiss the Summons. I further make a costs order nisi that the 5th Defendant pay to the Plaintiff the costs of and occasioned by the Summons, summarily assessed at $20,000.

Ms Natalie So instructed by Norton Rose Fulbright Hong Kong, for the Plaintiff

Mr Joshua Chu of ONC Lawyers, for the 5^th Defendant