廈門新景地集團有限公司 Formerly Known As 廈門市鑫新景地房地產有限公司 v. Eton Properties Ltd and Others

HCCL 13/2011

[2022] HKCFI 3269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO 13 OF 2011

(TRANSFERRED FROM HCA NO 961 OF 2008)

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BETWEEN

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Before: Hon Mimmie Chan J in Chambers (Open to Public)

Dates of Written Submissions: 13, 20 and 23 September 2022

Date of Decision: 24 October 2022

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D E C I S I O N

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1.On 18 August 2022, this Court handed down a decision granting leave (inter alia) to the Defendants to amend their Statement in Response (“Decision”). An order nisi was made that the costs of the amendment summons are to be paid by the Defendants to the Plaintiff, with certificate for Counsel.

2.Both the Plaintiff and the Defendants have applied to vary the costs order made.

3.The definitions and nomenclature in the Decision are adopted herein.

4.The Defendants seek the costs of the amendment summons incurred from 25 June 2022, being 28 days after the amendment summons was issued, on the basis that the Plaintiff had resisted the application for amendment, but had failed. It was argued that the order they propose is the usual order to be made when a party unsuccessfully resists an application for leave to amend, relying on Lessy SARL v Pacific Star Development Limited [1996] 2 HKLR 1 and Daimler AG v Leiduck [2018] 1 HKLRD 1188.

5.Costs are in the discretion of the Court, and orders of costs are made on the facts and circumstances of each case.

6.I do not agree that the amendment summons had been unreasonably resisted by the Plaintiff. The arguments made in opposition were reasonable and had to be carefully considered by the Court, before reaching the decision that the Defendants should not be shut out from arguing their case on the proper basis and date to be considered for assessment of damages, which question should be fully argued and determined at trial. At paragraph 24 of the Decision, it was expressly pointed out that one (if not the main) reason for allowing the amendment was the necessity for the Court at the assessment stage to consider all the circumstances of the case, including any delay, as may cause injustice to the parties.

7.The Defendants’ application for variation is accordingly not allowed. The costs of and occasioned by the Defendants’ summons for variation are to be paid by the Defendants to the Plaintiff, and summarily assessed.

8.With regard to the Plaintiff’s application for variation, the Defendants do not oppose the variation to provide for the costs of “and occasioned by” the amendment summons to be paid to the Plaintiff. It was argued whether these costs should cover only, and be stated to include only, the costs incurred by the Plaintiff in consequentially amending its Statement of Reply. “Costs of and occasioned by” are easily understood and are normally dealt with on taxation. The matter could have been easily resolved between the parties if they can only sensibly confer and identify the matters which are disputed.

9.I vary the order nisi to provide that the costs of and occasioned by the amendment summons namely the Plaintiff’s costs of consequentially amending its Statement of Reply be paid by the Defendants to the Plaintiff, with certificate for Counsel, to be taxed if not agreed. To discourage unnecessary applications to the Court, I do not allow to any party any costs for the Plaintiff’s application for variation.

Mr James Man and Mr Jonathan Ng, instructed by Anthony Siu & Co, for the plaintiff

Mr Richard Khaw SC and Ms Bonnie Cheng, instructed by Mayer Brown, for the 1^st and 2^nd defendants