Tam Yuk Ching and Others v. Hoosenally & Neo (A Firm) and Another

HCA 1511/2020

[2023] HKCFI 555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1511 OF 2020

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DECISION

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1.On 30 December 2022, I handed down a decision (“the Decision”) to partially allow the appeal of the 1^st plaintiff (“P1”) against a Master’s order to strike out the entirety of P1’s claim against the 1^st defendant (“D1”). Looking at the overall result, I made an order nisi that there should be no order as to costs in D1’s strike-out application before the Master and in P1’s appeal before this Court (“the Nisi Order”).

2.On 11 January 2023, P1 made an application to vary the Nisi Order.  Subsequently, I directed the application to be disposed of on paper and gave directions on the filing of written submissions.

3.Having considered the written submissions from P1 and D1, I have come to the view that the Nisi Order should not be varied. In reaching this conclusion, I have borne in mind the relevant well-established principles on costs that the parties have referred to in their written submissions, on which there is no dispute.

4.P1 accepts that there should be no order as to costs in D1’s striking out application before the Master.  However, she contends that she should be awarded half of the costs in her appeal to this Court to reflect her partial success in the appeal.

5.In my view, P1 has overemphasised on her partial success in this Court and has not fully taken into account the parties’ respective success (and failure) in both levels of court.  As was made clear in paragraph 37 of the Decision, the Nisi Order (1) dealt with the costs incurred in D1’s striking out application before the Master and those in P1’s appeal in this Court and (2) reflected the parties’ respective success before the Master and in P1’s appeal.  Judging by the result in the Decision, neither P1 nor D1 can be treated as wholly successful before the Master or in the P1’s appeal before this Court.  I disagree with P1’s submission that P1 is to be considered as the overall winner.   Awarding half of the costs in this appeal to P1 as sought by her would pay insufficient regard to the whole picture, including the costs which the parties had already incurred before the Master and how this Court came to the view that her claim for HK$5,508,000 should not be struck out as mentioned in the Decision.

6.For the above reasons (which effectively are the same as those set out in the Decision), I dismiss P1’s application to vary and make the Nisi Order absolute.  I see no reason why the costs of this application should not follow the event.  I order that D1’s costs of and occasioned by the application to vary are to be borne by P1, to be taxed if not agreed.  I direct that the taxation of D1’s costs is to be carried out summarily on paper.  I further direct (1) D1 should lodge and serve a statement of costs within 7 days from the date of this decision, (2) P1 should lodge and serve written submissions of not more than 3 pages to set out any disagreement on D1’s costs within 7 days thereafter, and (3) D1 should lodge and serve written submissions in reply of not more than 3 pages within 7 days thereafter.  The time referred to in the above directions should include Saturday and Sunday.

Mr Jacky Lam, instructed by Messrs Kok & Ha for the 1^st Plaintiff

Mr Ryan Chan, instructed by Messrs SSW & Associates for the 1^st Defendant