Lam Lai Ming v. Chan Wai Ming

DCCJ 175/2022

[2024] HKDC 233

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 175 OF 2022

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BETWEEN

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DECISION ON COSTS

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Introduction

1.The Plaintiff applied for default judgment, alternatively, summary judgment, by way of the Plaintiff’s Summons dated 8 June 2023 (the “8 June 2023 Summons”).

2.No notice of intention to enter judgment was served by the Plaintiff on the Defendant.

3.The Plaintiff’s summary judgment application is supported by her affirmation dated 7 June 2023.

4.On 25 August 2023, the Defendant filed his affirmation in opposition to the Plaintiff’s summary judgment application.

5.The first hearing of the 8 June 2023 Summons took place on 29 August 2023 before DDJ C.W. Ling (the “29 August 2023 Hearing”). During such hearing, the Plaintiff withdrew her application for default judgment. The learned judge proceeded with giving directions for the Plaintiff’s application for summary judgment, including granting leave to the Plaintiff to file and serve her reply affirmation on or before 26 September 2023.

6.The Plaintiff did not file any affirmation in reply.

7.On 23 November 2023, the Plaintiff took out a summons (the “23 November 2023 Summons”) and applied for inter alia an order that the Defendant do have unconditional leave to defend the proceedings and the costs of and occasioned by the 8 June 2023 Summons be determined by way of paper disposal.

8.By a consent order dated 22 December 2023, DDJ Calvin Cheuk made an order broadly in terms of the 23 November 2023 Summons.

9.Pursuant to the said consent order of DDJ Calvin Cheuk, the Plaintiff filed her written submissions on costs on 5 January 2024. The Defendant filed his written submissions on costs on 19 January 2024. The Plaintiff filed her reply written submissions on costs on 1 February 2024.

10.After considering the respective parties’ written submissions on costs, I make this decision on the costs of and occasioned by respectively the 8 June 2023 Summons and the 23 November 2023 Summons.

Costs of the default judgment application

11.For the costs of the Plaintiff’s application for default judgment by way of the 8 June 2023 Summons, the Plaintiff seeks costs against the Defendant on an indemnity basis; whereas the Defendant seeks costs against the Plaintiff.

12.The Plaintiff’s argument is that the Plaintiff had acted sensibly in applying for default judgment and that the withdrawal of such application was reasonably made given the Defendant’s silence all along until his last-minute filing of the affirmation in opposition 1.5 working days before the 25 August 2023 Hearing.

13.The Defendant argued that the Plaintiff’s default judgment application was bound to fail given the latter’s failure to comply with the requirements under O 19 r 8A of the Rules of the District Court (Cap. 336H) to serve on the Defendant a notice in writing of her intention to enter judgment and evidence such service by way of an affidavit.

14.I order that the Plaintiff do pay the Defendant’s costs of the default judgment application for the following reasons:

a. The Plaintiff has failed to comply with the requirement under O 19 r 8A of the Rules of the District Court. In the premises, the Plaintiff would not be entitled to enter judgment against the Defendant, who has filed an acknowledgement of service giving notice of intention to defend.

b. By the time DDJ C.W. Ling reminded and alerted the Plaintiff of such non-compliance at the 29 August 2023 Hearing, the Defendant had already filed his affirmation in opposition, which the Court would have to take into account when deciding the default judgment application.

c. In the end, the Plaintiff withdrew her default judgment application in the 29 August 2023 Hearing. There is no good reason in this case to depart from the general rule that the party withdrawing an application should bear the other side’s costs of the application, especially given reasons (a) and (b) above.

Costs of the summary judgment application

15.For the costs of the Plaintiff’s application for summary judgment by way of the 8 June 2023 Summons, the usual costs order where unconditional leave to defend is given is costs in the cause.

16.The Plaintiff asks for the costs of the 29 August 2023 Hearing. That was the first hearing of the Plaintiff’s application. There is no good reason why the costs of such hearing should not be in the cause of the application.

17.The Defendant argued that once his affirmation in opposition was filed on 25 August 2023, the Plaintiff should have decided not to proceed with the summary judgment application. The Defendant invites the Court to make an order that the Defendant’s costs after 25 August 2023 be paid by the Plaintiff.

18.In the present summary judgment application, the Plaintiff was granted leave to file and serve her reply affirmation by 26 September 2023. After the Defendant’s filing of his affirmation in opposition on 25 August 2023, the Plaintiff was entitled to consider it and seek legal advice before deciding whether or not to proceed with the application and file her reply affirmation.

19.I am of the view that the deadline for filing her reply affirmation on 26 September 2023 was the latest time for the Plaintiff to fairly and properly inform the Defendant of her change of position in not pursuing the summary judgment application. I disagree with the Defendant that the cut-off date should be 25 August 2023.

20.On 25 September 2023, the Plaintiff’s solicitors wrote to the Defendant’s solicitors, offering inter alia to agree to unconditional leave to defend being granted to the Defendant.

21.Since the Plaintiff had informed the Defendant of her latest position of not pursuing the summary judgment application before 26 September 2023, there is no reason to penalise her on costs.

22.I therefore order that the costs of the summary judgment application (including the costs of the 29 August 2023 Hearing) be in the cause.

Costs of the written submissions on costs

23.As to the costs of the written submissions on costs of the 8 June 2023 Summons referred to in paragraph 9 above, on a broad-brush approach I allocate 50% of such costs to the default judgment application and the other 50% to the summary judgment application.

24.Given that the Defendant obtained costs of the default judgment application, I order 50% of the costs of the submissions on costs be to the Defendant. Given that the parties’ costs submissions were all prepared by counsel whose assistance I appreciate, I will allow a certificate for counsel.

25.As to the other 50% of the costs of the submissions on costs relating to the summary judgment application, since neither party succeeded in obtaining the order s/he asked for, I will make no order as to costs.

Costs of the 23 November 2023 Summons

26.Given that by way of the 23 November 2023 Summons, the Plaintiff merely set out her latest position on her summary judgment application and proposed that the costs of the 8 June 2023 Summons be determined by way of paper disposal, I make no order on costs of the 23 November 2023 Summons.

Conclusion

27.In respect of the 8 June 2023 Summons, I make the following costs order:

a. Costs of and occasioned by the 8 June 2023 Summons insofar as it relates to the default judgment application be to the Defendant, to be taxed if not agreed;

b. Costs of and occasioned by the 8 June 2023 Summons insofar as it relates to the summary judgment application (including the costs of the 29 August 2023 Hearing insofar as it relates to the summary judgment application) be in the cause; and

c. 50% of the costs of the written submissions on costs be to the Defendant, with certificate for counsel, to be taxed if not agreed.

28.I make no order on costs of the 23 November 2023 Summons.

Mr. Ernest Ng, instructed by Messrs. Bond Ng Solicitors, for the Plaintiff

Mr. Edward M H Chan, instructed by Messrs. Ellen Au & Co, for the Defendant