Rich Profit Creation Ltd v. Ko Chung Lun and Others

HCA 1207/2017 & 1865/2017
(consolidated)

[2022] HKCFI 2939

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1207 of 2017 AND 1865 of 2017

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BETWEEN

(Consolidated by Order of Master Ho dated 1^st March 2019)

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Before:  Hon Mimmie Chan J in Chambers

Dates of Written Submissions:  18 & 31 August 2022 and 7 September 2022

Date of Decision:  23 September 2022

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D E C I S I O N

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1.On 27 June 2022, this Court handed down Judgment in the action, finding that the 1^st, 2^nd and 6^th Defendants held the sum of HK$3,580,380 as trustees for the Plaintiff, and that the 1^st and 2^nd Defendants held the further sum of US$4,728,132 on trust for the Plaintiff, that the said sums and interest should be paid by the 1^st, 2^nd and 6^th Defendants to the Plaintiff, and that they should further account for the said sums. The said Defendants were ordered to pay the costs of the action to the Plaintiff.

2.Although the Plaintiff had maintained and pursued its claims of conspiracy against the 3^rd, 4^th and 5^th Defendants at trial, no orders were made on the claims since the Court found that there was no evidence to prove that the 3^rd, 4^th and 5^th Defendants had taken steps with the intention to injure the Plaintiff by any unlawful means.

3.The orders made under the Judgment were perfected when the Judgment orders were drawn up, sealed, and filed on 22 July 2002.

4.It was only on 4 August 2022 that the 3^rd, 4^th and 5^th Defendants (“Applicants”)  applied by summons for their costs of the action to be paid by the Plaintiff to them (“Summons”).

5.I accept the submissions made on behalf of the Plaintiff, that the application made under the Summons was after the period of 14 days prescribed under Order 42 rule 5B RHC, and that even if the Applicants are right in contending that the order for costs made in the Judgment was an order nisi, such order had become absolute on 11 July 2022.

6.Notably, there was no application made in the Summons for either relief against sanctions, extension of time to apply for variation of the costs order nisi, or to set aside the order absolute perfected and sealed on 22 July 2022. Nor was there any evidence filed on behalf of Applicants to furnish any explanation for the delay in applying for variation of the costs order, which is one of the matters which the Court is required to consider under Order 2 rule 5, as part of all the circumstances of the case, in deciding whether to grant relief for any sanction imposed for a failure to comply with any rule or order of the Court.

7.On the authorities referred to by Counsel for the Plaintiff (Poon Ching Man v Lam Hoi Pun [2016] 3 HKLRD 815, Sek Chiu Yue v Secretary for Justice [2019] 6 HKC 273, Universal Entertainment Corp v Okada [2021] HKCFI 3432 and RTX Products v Li Yiu Fai, unreported, HCA 1777/2009, 12 November 2014), I am not satisfied that I have either the power or the necessary evidence of grounds to exercise my discretion to vary the costs order absolute made and to allow instead the Applicants to have their costs paid by the Plaintiff.  The decision relied upon by the Applicants (Winston Camara & Radio Co Ltd v Combi (Singapore)  PTE Ltd [1988] HKC 156)  was made prior to the CJR and before the application of Order 2 rule 5, and the decision of the Court of Appeal in Sek Chiu Yue is more apposite.

8.For all the above reasons, the Summons is dismissed, with costs to be paid by the Applicants to the Plaintiff, to be summarily assessed.  The Plaintiff is to file and serve its schedule of costs within 7 days and the Applicants shall file and serve any statement of objection within 7 days thereafter.

Mr Vincent Chiu, instructed by Foo, Leung & Yeung, for the plaintiff

Mr Kevin CW Wong, instructed by Li, Chow & Company, for the 3^rd to 5^th defendants