Tang Wai Hung v. Glory Sky Precious Metals Ltd

DCCJ 852/2019

[2023] HKDC 75

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 852 OF 2019

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REASONS FOR DECISION

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1.This Decision should be read together with my Decision handed down on 5 September 2022 (the “Main Decision”)[1]. Unless otherwise indicated, I continue to use the same definitions.

2.In paragraphs 41 and 42 of the Main Decision, I made a costs order nisi that:

(1)  Costs of the Stay Application be reserved; and

(2)  Costs of the Costs Appeal to be paid by the defendant to the plaintiff to be taxed if not agreed with certificate for counsel, but execution of such costs order be stayed pending the final determination of the New Action.

3.At the hearing on 31 October 2022, I heard the following ancillary matters flowing from the Main Decision:

(1)  By summons dated 19 September 2022, the plaintiff applies to vary the costs order nisi, to the effect that costs of the Costs Appeal shall be summarily assessed (“P’s Variation Application”).
This is notwithstanding that even with summary assessment, execution of such costs order will still be stayed pending the final determination of the New Action;

(2)  By summons dated 7 October 2022, the defendant applies for an extension of time to take out an application for leave to appeal (the “EOT Application”);

(3)  By summons dated 14 October 2022, the defendant applies to vary the costs order nisi out of time, such that there shall be no order as to costs of the Costs Appeal (“D’s Variation Application”).

4.I dismissed the EOT Application at the hearing with brief oral reasons given. In short, it is procedurally wrong to apply for time separately from an application for leave to appeal. The authorities are very clear, that in considering whether to allow an application for leave to appeal out of time, one of the prime considerations is the merits of the intended appeal. It is also relevant to consider the length of the delay and the reasons for it: see for example Chow Kin Hang Ali v Secretary for Justice [2022] HKCA 1814 at §17. At the hearing before me, I was not provided with the reasons for the delay, and no proposed grounds of appeal were provided or articulated. It was not even known whether the defendant intended to apply for leave to appeal (so the EOT Application was basically a blanket leave for time if an application for leave to appeal is eventually desired). In the circumstances, there was no basis for me to extend time in such a blanket fashion. I ordered costs of the EOT Application to be paid by the defendant to the plaintiff and execution be stayed pending the final determination of the New Action. The question as to whether such costs shall be summarily assessed or payable in any event is dealt with below (the parties agree that this question will be answered identically as that for P’s Variation Application).

5.I further gave directions at the hearing for parties to lodge skeleton submissions in relation to P’s Variation Application and D’s Variation Application so that the matter will then be dealt with on paper. After fully considering those written submissions, this is my decision on the 2 summonses.

P’s Variation Application

6.I bear in mind the principles stated in Midland Business Management Ltd v Lo Man Kui (No 2) [2011] 2 HKLRD 667 in considering whether it is appropriate to order summary assessment of costs.

7.After considering the circumstances of this case, I decline to order summary assessment of costs of the Costs Appeal for 2 reasons.

8.First, the plaintiff applied for a stay of this action pending the final determination of the New Action, which I granted for reasons stated in the Main Decision. I find it unattractive for the plaintiff then to come and ask the court to take further procedural steps in this action which has been stayed as sought by the plaintiff himself.

9.Second, one of the main reasons for conducting summary assessment is such that there is an immediacy to pay costs, and this serves as a deterrent against the taking out of unmeritorious applications (see Midland §§9-12). Here, even if I conduct summary assessment of costs of the Costs Appeal, execution of such order will be stayed in any event. I consider this to be a weighty factor against summary assessment on the facts of the present case.

10.I therefore dismiss P’s Variation Application.

11.It also follows that costs of the EOT Application shall be paid by the defendant to the plaintiff in any event (and execution be stayed pending the final determination of the New Action). For the benefit of the taxing master, 15 minutes of the hearing on 31 October 2022 were attributable to the EOT Application.

D’s Variation Application

12.The defendant’s main argument for variation is that the Costs Appeal was not pursued unreasonably. There are also suggestions that I erred in dismissing the Costs Appeal. These arguments may be disposed of briefly.

13.My decision on the Costs Appeal stands until it is overturned by the Court of Appeal (and there is as yet no application for leave to appeal). The hard truth is that the defendant pursued the Costs Appeal and lost. In addition, as explained in the Main Decision, I was also of the view that the Costs Appeal did not get off the ground since the defendant was unable to pinpoint how the learned Master erred in law or failed to take into account relevant matters (or took into account irrelevant matters), and the defendant has singularly failed to overcome the threshold applicable to the Costs Appeal: see Main Decision §§28, 31. Accordingly, I see no reason to depart from the usual rule that costs should follow the event.

14.I therefore dismiss D’s Variation Application.

Costs of the variation applications

15.With neither of the variation applications successful, I consider it fair that there should be no order as to costs of the 2 summonses including the hearing on 31 October 2022 (save the 15 minutes attributable to the EOT Application). I so order.

Mr Lawrence Cheung, instructed by Kelvin Cheung & Co (filing written submissions dated 6 October 2022) and Mr Tony Luk of Kelvin Cheung & Co (attending the hearing on 31 October 2022 and filing written submissions dated 17 November 2022), for the plaintiff

Mr Ching Ming Yu of Ching & Co, for the defendant