Success Lane Development Ltd v. Fergurson Hong Kong Ltd t/a New World Millennium Hong Kong Hotel

DCCJ 2191/2023

[2024] HKDC 44

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2191 OF 2023

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BETWEEN

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DECISION

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1.The plaintiff, acting in person, has taken out 3 related Summons dated respectively 17 October, 5 December and 8 December 2023. The court has given directions, inter alia, that all three summons are to be dealt with by way of paper disposal together.

Background

2.At the conclusion of the hearing on 29 September 2023 (which dealt with an ex-parte injunction application by the plaintiff), this court ordered, amongst others:

a.  Costs order nisi for the plaintiff to pay the defendant’s costs of the plaintiff’s application dated 22 September 2023 and 28 September 2023 including the return hearings of both applications on an indemnity basis with certificate for counsel;

b.  Costs order nisi be made absolute in 7 days; and

c.  The defendant shall within 7 days lodge and serve a summary Bill of Costs and the plaintiff shall lodge a serve a list of objections 7 days thereafter. If the plaintiff fail to do so, it will be deemed to have no comment on the defendant’s bill of costs. The court will assess costs summarily and costs shall be paid forthwith.

3.During the hearing, the court has explained to the plaintiff that if there was no application made within 7 days, the cost order nisi would become order absolute. However, instead of taking out a proper inter-partes application to vary the cost order nisi, wrote a letter to the Court on 6 October 2023 stating:

“We are the Plaintiff. In accordance with the directions / orders issued by the Court on 29 September 2023, regarding the cost order nisi, attached is the Plaintiff’s grounds for seeking a stay on the cost orders. We also submit that D should pay P’s costs on an indemnity basis, which should be assessed summarily and paid forthwith.”

4.The plaintiff also attached a document titled “P’s Grounds to Stay the Cost Order Nisi Pertaining to the Injunction Summons Dated 22 September 2023” which totaled 6 pages and 27 paragraphs and was in effect a repeat of the plaintiff’s submissions made during the hearing on 29 September 2023.

5.This was clearly not a proper inter-partes summons and the plaintiff was seeking to stay (and not to vary)  the cost order nisi.

6.Further, it would appear that the plaintiff did not copy this letter to the defendant. There was no “c.c.” written on this letter and there was no mention of copying this letter to the defendant’s solicitors under paragraph 3 of the 10^th Affirmation of Yung Mei Chun Jessie (“Yung’s 10^th Affirmation”).

7.It is perhaps telling that the plaintiff did write 2 letters to the defendant’s solicitors on the same day (copy of both were exhibited as Exhibit 72 and 73 in Yung’s 10^th Affirmation, both of which were copied to the court). However, in both letters, the plaintiff was only complaining about having not been served the Statement of Costs from the defendant etc. but the plaintiff did not mention any alleged application made to the court to stay / vary the Cost Order Nisi.

8.So, if anything, the 6^th October 2023 letter to the Court was again in form of an ex-parte communication / “attempted one-sided application”. This was despite the repeated advice from the court on 29 September 2023 about the inappropriate nature of taking out ex-parte applications (indeed, that hearing was dealing with an inappropriate ex-parte injunction application).

9.The plaintiff  accordingly lodged and served a Statement of Costs on 10 October 2023, i.e. within 7 days according to Order 3, r.2(5).

10.The plaintiff lodged and serve a List of Objections on 17 October 2023.

11.And it was only on 17 October 2023 that the plaintiff took out an inter-partes summons (“October Summons”)  along with the Yung’s 10^th Affirmation in support for an order that:

a.  The defendant’s filing of the statement of cost on 10 October 2023 be set aside;

b.  The plaintiff’ filing of the list of objection dated 17 October 2023 should not be determined due to the set aside of the defendant’s statement of cost; and

c.  Costs of the application be paid by the defendant to the plaintiff, summarily assessed and paid forthwith.

12.The court has given directions for the October Summons to be dealt with by way of paper disposal and for the parties to lodge and serve their respective written submissions on or before 8 December 2023.

13.However, before this deadline, on 5 December 2023, the plaintiff took out another inter-partes summons (the “5 December Summons”)  to amend the October Summons to seek, instead, an Order that:

The plaintiff’s filing of the list of objection dated 17 October should not be determined pending the determination of Plaintiff’s application to vary the cost order nisi.

14.The plaintiff also filed Yung’s 10^th Affirmation (as mentioned above)  in support.

15.The court gave the order that the December Summons is to be dealt with by way of paper disposal at the same time as the October Summons with no leave for further written submissions.

16.Both the plaintiff and the defendant’s solicitors accordingly lodged and served their written submissions on 8 December 2023.

17.However, on the same day, the plaintiff took out yet another inter-partes summons (the “8 December Summons”)  for an order, inter alia:

a.  The Costs Order Nisi, given …on 29^th September 2023…have not been made absolute as the plaintiff has applied to vary the Cost Order by way of a letter dated 6 October 2023;

b.  The Cost Order Nisi…be varied as follows:

“The cost order be stayed. The defendant shall pay the costs of the Summonses to the plaintiff, on an indemnity basis, to be summarily assessed and paid forthwith.”;

c.  The costs of, incidental to and occasioned by this application be paid by the defendant to the plaintiff, to be summarily assessed and paid forthwith…

(in the Summons, the plaintiff also sought certain directions for further rounds of Affirmations and written submissions)

18.This court ordered that the 8 December Summons be dealt with by way of paper disposal at the same time as the October Summons and the 5 December Summons, and that there be no leave for filing and serving further affirmations and skeleton submissions by both parties.

The October Summons

19.Firstly, the plaintiff has not shown the court any procedural basis for the court to “set aside” the defendant’s Statement of Claim.

20.More importantly, as stated above, the defendant’s statement of costs was served on 10 October 2023 which was in accordance with Order 3 Rule 2(5).

21.Indeed, even if it was late as alleged by the plaintiff (and it was not), a delay of mere 4 days was clearly not a proper basis for an application to “set aside” the statement of costs. As such, the application under such circumstances is plainly scandalous, vexatious and an abuse of process.

The 5 December Summons and 8 December Summons

22.The plaintiff has filed and served its List of Objections and there is, again, no basis to apply to vary the October Summons, in effect, for the issue of cost to be stayed: the Costs Order Nisi made on 29 September 2023 was made absolute on 10 October 2023, well before the October Summons and the 5 December Summons.

23.In fact, the plaintiff only took out a “proper” inter-partes summons to vary the Costs Order Nisi on 8 December 2023, some 2 months after the deadline.

24.The October Summons, 5 December Summons and 8 December Summons are clearly all abuses of process: and the defendant has filed and served the Statement of Costs and, importantly, plaintiff has also filed and served the List of Objections. There is no reason why costs should not be assessed now.

Other considerations

25.However, even if the court considers the plaintiff’s “P’s Grounds to Stay the Cost Order Nisi Pertaining to the Injunction Summons Dated 22 September 2023” submitted in the plaintiff’s letter to the court on 6 October 2023, it is no more than a re-cap of what the plaintiff has already submitted during the very substantial hearing on 29 September 2023 lasting several hours.

26.At the conclusion of that hearing, this court has already given reasons orally why the defendant’s costs of, incidental to and occasioned by the plaintiff’s relevant summons should be paid by the plaintiff on an indemnity basis: for example, the court found that the plaintiff has repeatedly took out ex-parte applications, has taken out essentially the same application before the court’s decision on the previous application, and that the alleged urgency to justify such conduct was not believable etc. The court need not repeat those findings in details here.

27.Suffice to say, the court finds no basis to re-consider in exercising its discretion to award costs in this case.

28.In the plaintiff’s Skeleton Argument, there was nothing relevant or not submitted before besides the claim that it has “applied to vary the cost order nisi” on 6 October 2023.

29.However, even in paragraph 1 of the 8 December Summons, the plaintiff already admitted that the alleged application was made “by way of a letter dated 6 October 2023”. It does not matter whether the deadline for the Cost Order Nisi to be made absolute should be 6 or 10 October 2023, the Plaintiff has plainly failed to properly apply to vary the Cost Order Nisi before 6or 10 October 2023 even by the Plaintiff’s own admission.

Order

30.As such, all three Summons should be dismissed.

31.This court has already given a serious warning to the plaintiff’s representative regarding the conduct of the claim in the last hearing. Regrettably, the plaintiff has not only taken no heed of the warning but, indeed, seems to have purposely flaunt the warning by persisting in such conduct.  This court see no reason why the costs of all three Summons should not be taxed on an indemnity basis.

32.The court therefore orders that the plaintiff to pay forthwith the defendant’s costs of, incidental to and occasioned by the 3 Summons summarily assessed on an indemnity basis at HK$28,908.33.

Summary assessment of costs

33.Accordingly, the court will now deal with summary assessment for the costs order made on 29 September 2023.

34.Having perused the defendant’s Statement of Costs and the defendant’s List of Objections, the court would make the following order:

a.  Costs of the defendant regarding the plaintiff’s Summons dated 22 September 2023 assessed summarily at HK$253,265.00 (inclusive of Counsel’s Fee and briefs total of HK$69,000);

b.  Costs of the defendant regarding the plaintiff’s Summons dated 29 September 2023 assessed summarily at HK$57,261.33 (inclusive of Counsel’s Fee and briefs total of HK$18,000); and

c.  Both sums are to be paid forthwith by the plaintiff to the defendant.

The plaintiff appeared in person

Mr Cedric Yeung, instructed by Messrs Y T Chan & Co., for the defendant