Charm Master Enterprises Ltd v. Grand T G Gold Holdings Ltd and Another
Read the full judgment text of HCA 397/2011 on BabelCite. This High Court CFI judgment was delivered on 14 July 2022.
1. The Plaintiff seeks to vary the costs orders that I made in paragraphs 45-46 of my Decision dated 13 May 2022 (“ Decision ”). D2 opposes the application and asks that the orders nisi on costs do stand.
Cited by 1 case · Cites 1 case
|
HCA 397/2011 [2022] HKCFI 2137 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 397 OF 2011 ____________ BETWEEN
____________ Before: Hon Au-Yeung J in Chambers Closing Date for Written Submission: 4 July 2022 Date of Decision: 14 July 2022 _____________ D E C I S I O N _____________ Introduction 1.The Plaintiff seeks to vary the costs orders that I made in paragraphs 45-46 of my Decision dated 13 May 2022 (“Decision”). D2 opposes the application and asks that the orders nisi on costs do stand. 2.The legal principles are not in dispute. When disposing of an interlocutory application, the Court has power to make a summary assessment of costs instead of asking the parties to wait for taxation. This aims at discouraging unwarranted interlocutory applications or unmeritorious oppositions to such applications and saves time and costs of taxation. In deciding on the costs order, the Court is entitled to consider the conduct of the parties, including the manner in which a party pursued or defended his case or a particular issue. See Order 62, rules 5(1)(e) and 5(2); Hong Kong Civil Procedure 2022, Volume 1, §62/0/2. Costs of the Plaintiff’s summons 3.The Plaintiff sought in its summons, amongst others, for an order for leave to cross-examine Robin Lee at the trial and that D2 shall secure the attendance of Robin Lee at the trial. This Court effectively rejected the Plaintiff’s submissions for the reasons given in paragraphs 17 and 18 of the Decision and accepted the objections of D2. However, the Plaintiff got what it wanted in substance by the Court’s exercise of its case management powers. 4.This was not a situation of D2 unreasonably objecting to the Plaintiff’s summons. It was just that the parties did not take the proper case management approach. On what was effectively a case management matter, dealt with at a CMC, I did not see the need to order summary assessment of costs against D2 to discipline it against unmeritorious objection. This was particularly so when, in view of the other costs orders that I made, a taxation was unavoidable. I decline to vary the costs order nisi. D2’s amended summons for amendment to its amended defence and counterclaim 5.I have ordered that the “costs of and occasioned by the amendments” be to the Plaintiff but costs of the hearing on 19 April 2022 be in the cause. 6.The parties have agreed that the costs of D2’s amended summons, including the hearing on 19 April 2022, be in the cause and that the costs of and occasioned by the amendments be to the Plaintiff, to be taxed if not agreed (“the Amendment Costs”). I agree to the variation in this respect. D2’s summons for leave to adduce the 2nd supplemental witness statement of Leung 7.The Decision did not expressly spell out the order for costs of this summons. The Plaintiff submits that this Court should order that the costs of this summons and costs of and occasioned by the 2nd supplemental witness statement of Leung be to the Plaintiff, to be taxed if not agreed. 8.D2 suggests that there should be no order as to costs on the grounds that the Court did not accept the Plaintiff’s objections and emphasized that the revisions to the prayer for relief (constituting D2’s Final Draft) had nothing to do with the witness statement. The latter was a matter of evidence, which was quite separate from the Court’s concerns that relief appeared to be sought against Listco initially. 9.I am unable to agree with D2. As I have stated in paragraph 44 of the Decision, the arguments on amendments in this case were unusual. The Court accepted part of the Plaintiff and part of D2’s arguments. D2 has to submit yet another draft (Final Draft) during the arguments. That was why the costs of the hearing was in the cause. However, the undeniable fact was that the Court granted the indulgence to amend after the pleadings have long closed and the amendments related to the Separate Agreement. 10.The parties have agreed the Amendment Costs (which was in accordance with this Court’s intention). 11.In Hong Kong Civil Procedure 2022, Volume 1, §62/1/3(13), “costs of and occasioned by the adjournment” refers to items of costs which are directly attributable by the adjournment. 12.By the same token, all costs of and occasioned by amendments to D2’s pleading would cover all costs directly attributable to or which would not need to be incurred but for the amendments. These costs practically will include:
13.As some of those costs cannot usually be ascertained at the time the costs order is made, therefore costs of and incidental to amendment to pleadings are usually taxed instead of summarily assessed. 14.In the present case, the supplemental witness statement of Leung plainly arose out of D2’s amendments to pleadings. The Plaintiff has made clear right from the start that its objection to the supplemental witness statement was the same as for the amendment, ie in respect of those parts that referred to the Separate Agreement (§3 of the Decision). 15.Accordingly, costs of D2’s summons to adduce the supplemental witness statement of Leung formed part of the “costs of and occasioned by the amendments” to D2’s pleading. Those costs were covered by paragraph 46(6) of the Decision, although it would have been better if I had spelt this out expressly in the Decision. The Plaintiff’s application for variation in respect of this summons in fact reflects this Court’s intention and I grant the variation. Conclusion 16.With regard to the Plaintiff’s summons for variation of costs, I therefore order as follows:
17.As the Plaintiff is largely successful, I make an order that D2 do pay the Plaintiff 50% of the overall costs of the summons for variation. 18.Looking at the Plaintiff’s costs statement for the variation, as a matter of principle, cost of a USB (presumably containing soft copies of the written submissions) is not recoverable because it is re-usable and the judge’s clerk usually returns the USB to the relevant solicitor after the hearing. Likewise, costs for gathering information and drafting of a costs statement are not recoverable: Practice Direction 14.3, §13. This is to ensure that a broad brush approach is taken in summary assessment and the receiving party’s solicitor would not incur unnecessary costs in seeking costs. 19.In the premises, I order that D2 do pay the Plaintiff $25,000 in respect of the costs of the summons for variation. 20.I thank counsel for their assistance.
Written Submission by Mr Damian Wong, instructed by Chan, Lau & Wai, for the Plaintiff Written Submission by Ms Natalie So, instructed by C. T. Chan & Co, for the 2nd Defendant | ||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCA 397/2011