Atlantic Link Ltd v. The Incorporated Owners of Yen Ying Building and Others
Read the full judgment text of DCCJ 1306/2018 on BabelCite. This District Court judgment was delivered on 30 December 2022.
1. This court handed down the judgment dated 3 August 2022 after trial (“ the Judgment ”) whereby P obtained judgment against all 15 Ds. At the end of the Judgment, the parties were directed to make written submissions on costs of the action and costs of P’s summons dated 9 October 2020 (“ P’s Summons ”).
Cited by 3 cases
|
DCCJ 1306/2018 [2022] HKDC 1530 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 1306 OF 2018 --------------------
-------------------- Before: His Honour Judge Kent Yee in Chambers (paper disposal) Dates of written submissions: 21 and 29 September 2022 (Plaintiff) 20 September 2022 (1st Defendant) 21 September 2022 (2nd Defendant) 21 September 2022 (3rd, 4th, 6th, 10th, 11th, 13th, 15th Defendants) 20 September 2022 (5th Defendant) 21 September 2022 (7th and 8th Defendants) 21 September 2022 (14th Defendant) Date of Decision: 30 December 2022 -------------------- DECISION ON COSTS -------------------- Introduction 1.This court handed down the judgment dated 3 August 2022 after trial (“the Judgment”) whereby P obtained judgment against all 15 Ds. At the end of the Judgment, the parties were directed to make written submissions on costs of the action and costs of P’s summons dated 9 October 2020 (“P’s Summons”). 2.P and all Ds except D9 and D12 have lodged with this court their written submissions accordingly. Nothing was heard from D9 and D12. I have considered all the written submissions and decided to make my determination on costs on paper. 3.In this Decision, I shall adopt all the abbreviations used in the Judgment. I shall first make my determination on the costs of P’s Summons and then the costs of the entire action. Costs of P’s Summons 4.P submits that despite the dismissal of its application by P’s Summons, costs should still be in the cause. I cannot agree. 5.The application was, in my view, premised on some misconceptions. The crux of P’s complaint, which it now still maintains, was that the relevant Ds decided not to call Mr Patrick Lau, who was their expert, to testify at trial notwithstanding the order which I made at the Pre-Trial Review hearing (“the PTR Order”) to the effect that unless otherwise directed by the trial judge, all the experts should attend the trial to testify. P said this decision of the relevant Ds was a blatant breach of the PTR Order. 6.In P’s Summons, it was stated that in view of the alleged breach, P applied for an order that the Joint Report be admitted to be expert evidence without the attendance of the experts. 7.Mr Patrick Lau’s evidence in the Joint Report supported the case of P. Understandably, P would be eager to have his evidence in addition to the evidence of Mr Stewart Wong. However, the relevant Ds had the fundamental right to choose their witnesses for the purpose of the trial. If they decided not to call Mr Patrick Lau, the natural consequence was that his evidence contained in the Joint Report should be ignored. There was no breach of the PTR Order at all. 8.I cannot accept P’s submission that Mr Patrick Lau was actually appointed by the court and so he must attend the trial to testify. He remained to be a witness of the relevant Ds throughout though he owed the court an independent duty. Nor can I accept that once his evidence had been disclosed, he must be called as a witness. 9.P did not want to give up the evidence of Mr Patrick Lau and it eventually issued a subpoena to call him to testify. At the end, all three experts gave live evidence. 10.In the circumstances, P’s Summons had no merit and was thus dismissed at trial. P must pay costs of P’s Summons to Ds, to be taxed if not agreed with certificate for one counsel where applicable. Costs of the action 11.On any view, P is the overall winner of the action and should normally be entitled to costs. Some of Ds, nevertheless, contend that P should not. 12.First, it was disclosed after trial to this court that some of Ds made sanctioned payments prior to the trial. D3, D7, D8, D9 and D12 made a sanctioned payment of HK$250,000 on 22 June 2020. D14 made a sanctioned payment of HK$50,000 on 2 September 2020 and D5 did the same on 8 September 2020. 13.These sanctioned payments were expressly made in settlement of the whole of P’s claim. P accepted none of these sanctioned payments. 14.D5 now contends that P fails to do better than its sanctioned payment in that it was only ordered to pay HK$2,687.50 as its share of the damages awarded to P. D5 seeks indemnity costs against P under O.22 r.24 after 6 October 2020 when the time for the acceptance of its sanctioned payment expired. 15.There is no substance in this submission. As fairly pointed out by D7 and D8, none of the sanctioned payments made covers the non-monetary reliefs sought by P. These sanctioned payments are ineffectual for the purpose of O.22 and could not be said to be more advantageous than the Judgment entered in favour of P. 16.D14 also relies on its sanctioned payment but it further relies on its agreement with P embodied in a consent summons dated 14 September 2020 (“the Consent Summons”). As an enclosure of the letter dated 18 September 2020, P’s solicitors lodged with this court a copy of the Consent Summons, which was signed by P and all of the Ds except D7, D8, D9 and D12. The Consent Summons was not filed and no order was made on the same. 17.The Consent Summons contained repair orders against all Ds except D2, which ceased to be the Manager of the Building in June 2020. As against D1, the repair order related to the common part of the Building. As against the 2/F Owners, the repair order related to T2 and as against the 3/F Owners, the repair order related to T3. The Consent Summons further provided that the issue of damages and costs be reserved for the trial judge. 18.Mr Cheung, for D14, submits that, given the sanctioned payment and the Consent Summons, P should not be awarded any costs of the trial against D14 and instead P should pay indemnity costs, or alternatively standard costs, of the trial to D14 by reason of its sanctioned payment and the Consent Summons. As a further alternative, there should be no order as to costs of the trial as between P and D14. 19.I am unable to accept Mr Cheung’s submission. P was entitled to insist on its injunctive relief and refuse to accept D14’s sanctioned payment in the first place. 20.I do not think the Consent Summons could have the effect of making D14’s sanctioned payment include an injunctive relief against D14. I also note that in the Consent Summons, D14 did not accept to pay any costs to P at all. The issues of damages and costs were expressly reserved for the trial judge. P could not be expected to accept the sanctioned payment after D14’s signing the Consent Summons as now suggested by Mr Cheung. To resolve the damages and costs issues, the trial as between P and D14 could not have been avoided. The combined effect of the sanctioned payment and the Consent Summons does not render the assistance to D14 that it now alleges. 21.That said, I agree with D7, D8 and D14 that in my consideration of the costs issue, I should take into account the conduct of Ds including all the pre-trial steps taken by them to protect their costs position. 22.On the other hand, it is submitted that P should be deprived of some of its costs as P failed in its claim for loss of rental income. Mr Wong, together with Ms Li for D2, further highlights to this court that P failed in its claim against D2 in respect of T3. 23.I am not convinced that the rule laid down in Re Elgindata No.2 [1992] WLR 1207 should be invoked here. P’s claim for loss of rental income did not take up any significant amount of the court’s time and there was no expert evidence adduced in support of this claim. I find that the claim was bona fide. It was rejected only because P failed to prove causation. 24.As regards P’s claim against D2 in respect of T3, similarly it did not consume much court’s time and involve additional evidence. I do not think that the determination on this claim constitutes an event that P should be ordered to pay costs. 25.Mr Wong raises the issue of apportionment. He submits that in the Judgment, this court finds that D1 to D8 are liable for water seepage from T2 and D1 and D9 to D15 are liable for water seepage from T3 and liabilities to pay damages were apportioned equally between the two groups of Ds. He submits that P’s costs should be similarly apportioned. 26.I agree with Mr Wong. Apportionment is only logical and fair. 27.Next, I have to deal with P’s application for indemnity costs against D2 for the entire action and against D7-9, 12 and 14 (collectively “the Disputing Ds”) for costs incurred after the Joint Report. 28.I have perused the authorities helpfully cited to me by Mr Tse, for P here but not at trial. Most of them involve unsuccessful plaintiffs who failed to take heed of their own experts and insisted on their hopeless claims. In Wates Construction Ltd v HGP Greentree Allchurch Evans Ltd [2005] EWHC 2174 (TCC), Judge Peter Coulson QC quoted the following dicta of Simon Brown LJ in Kiam v MGM Ltd No2 [2002] 1 WLR 2810:
29.I have considered all the complaints of P about D2 made by Mr Tse. I am not persuaded that the conduct of D2 was unreasonable to such a high degree that indemnity costs should be ordered against D2 despite my rejection of some of its evidence. In particular, I did not make any factual finding that the Two Letters were mere fabrication and false evidence though I rejected Madam Chung’s explanation for their belated disclosure. 30.With regard to the Disputing Ds, I agree that their challenge to the evidence of the experts was not reasonable. At the PTR hearing, only D14 confirmed that it would require cross-examination of the experts and on that basis the PTR Order was made. I can accept that Ds were entitled to test the evidence of the experts but they did so without sound basis. My disapproval at how counsel for the Disputing Ds cross-examined the experts is evident in the Judgment and I need no reiteration. These Ds indeed prolonged the trial unnecessarily. 31.However, I should not lose sight of the following matters. First, the trial was in any event inevitable given P’s claim for substantial damages albeit rejected at the end. Second, P itself even secured the attendance of Mr Patrick Lau by subpoena when it should be content with the uncontradicted evidence of its own expert. 32.All in all, in view of the whole circumstances, I do not find the conduct of the Disputing Ds and D2 to be so unreasonable to the extent that an award of indemnity costs is justified. I do not think I should exercise my discretion to allow costs on indemnity basis against them. 33.Whilst these Ds prolonged the trial, other Ds took a reasonable and realistic approach. They made an attempt to shorten the trial by signing the Consent Summons and they acted in accordance with their agreement with P in the Consent Summons throughout the trial. Unlike D14, they took a minimal part in the trial and did not challenge any evidence. 34.D1, D3, D4, D6, D10, D11, D13 and D15 in their written submissions repeated their complaints against D2 and D7 made in their opening submissions and explained how they were reluctantly dragged into this bitter lawsuit. This court refused to deal with their Contribution and/or Indemnity Notice against D2 and D7 and their complaints therein were not investigated. I cannot accept their allegations in the absence of a proper investigation and they cannot have any bearing on my costs decision here. 35.Whilst I have some sympathy with these Ds, they should know that litigation is a serious matter even in a simple water seepage case and that there would be consequences for every action and inaction in the proceedings. They themselves should find out how their interests could be best protected. 36.Nevertheless, I shall take into account the conduct of Ds at trial in my apportionment of the respective liabilities of Ds to pay costs to P. Conclusion and order 37.Based on the foregoing analysis, I come to the conclusion that P should have costs of the action including their costs arising from these written costs submissions to be taxed on the standard basis if not agreed with certificate for one counsel. None of Ds has taken effective measures to protect their respective costs positions. Such costs should be borne by Ds in the following manner. 38.First, up till the commencement of the trial on 14 October 2020, 50% of such costs be borne in equal shares by D1, D2 and the 2/F Owners and the remaining 50% of such costs be borne in equal shares by D1 and the 3/F Owners. 39.Thereafter, each of D2, D7, D8, D9, D12, D14 should bear 15% of the costs of P. For the remaining 10%, D1 being responsible for both T1 and T2, should bear 2% and each of D3, D4, D5, D6, D10, D11, D13 and D15 should bear 1%. 40.On the other hand, P should pay costs of P’s Summons to Ds, to be taxed if not agreed with certificate for one counsel where applicable. 41.Again, at the time of handing down this Decision, those Ds acting in person will be informed in punti that oral interpretation of this Decision could be arranged for them at their written request to be made within 7 days. 42.Lastly, it remains for me to thank the parties for their written submissions and the legal representatives for their assistance.
Mr. Dixon Tse, instructed by Ip, Kwan & Co., for the plaintiff The 1st, 3rd, 4th, 6th, 10th, 11th, 13th and 15th defendants acted in person Mr. Damian Wong and Ms. Winnie Li, instructed by Ho, Tse, Wai & Partners, for the 2nd defendant C.T. Chan & Co. for the 5th defendant Oldham, Li & Nie, for the 7th and 8th defendants T C Wong & Co, for the 9th and 12th defendants Mr. Tommy Cheung, instructed by Lo & Lo, for the 14th defendant | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Other judgments that cite this case
Further hearings and rulings under DCCJ 1306/2018