Success Lane Development Ltd v. Fergurson Hong Kong Ltd t/a New World Millennium Hong Kong Hotel
Read the full judgment text of DCCJ 2191/2023 on BabelCite. This District Court judgment was delivered on 1 March 2024.
1. This is the Defendant’s application for variation of a costs order nisi .
Cited by 7 cases · Cites 4 cases
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DCCJ 2191/2023 [2024] HKDC 25 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 2191 OF 2023 --------------------------------------- BETWEEN
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------------------------ DECISION ------------------------ APPLICATION 1.This is the Defendant’s application for variation of a costs order nisi. 2.By the Decision handed down on 25 September 2023 (“Injunction Decision”), this court dismissed the Plaintiff’s application (“Injunction Application”) for continuation of an ex-parte injunction order (“Ex-parte Injunction Order”) with a costs order nisi in favour of the Defendant (“D”) (“Costs Order Nisi”). 3.On 9 October 2023, D took out the present summons for variation of the Costs Order Nisi (“the Costs Summons”). 4.On 12 October 2023, the Plaintiff (“P”) took out a summons (“the Leave Summons”) for leave to appeal out of time against the Injunction Decision. 5.For effective disposal of the two Summonses, this Court has directed them to be determined by way of paper disposal. Subsequently, P made application for time extension to lodge the written skeleton submissions as well as for obtaining the transcripts of all the hearings before this Court. All such applications were allowed. The Submissions in Reply were eventually lodged into court on 29 November 2023. 6.On 19 December 2023, P took out another summons (“Evidence Summons”) seeking leave to adduce new evidence for the purpose of the Leave Summons, which also has an impact on the present Costs Summons. The hearing was listed to be heard on 6 February 2024. Prior to the scheduled hearing, P applied to extend the time for lodging the written skeleton submissions and to vacate the hearing. In order not to further delay the determination of all the three summonses[1], this Court directed the Evidence Summons to be determined on paper. 7.In a separate Decision (“Leave Decision”) handed down on 1 March 2024, this Court dismissed both the Leave Summons and the Evidence Summons. This Decision will solely deal with the Costs Summons and should be read together with the Injunction Decision. For ease of reference, the abbreviations used in the Injunction Decision are adopted herein. 8.The background and procedural history of the present action has been briefly set out in the Injunction Decision, which I should not repeat here. For ease of reference, I shall adopt herein the abbreviations used in the Injunction Decision unless otherwise stated. GROUNDS OF APPLICATION 9.The Costs Order Nisi provides that:-
10.By the Costs Summons, D seeks to vary the Costs Order Nisi to the extent that:-
11.In essence, D seeks to vary the Costs Order Nisi in two respects: (1) to extend the costs order to cover D’s costs incidental to and occasioned by the Injunction Application and D’s Stay Application as well as all costs reserved, if any (“Extension Request”); and (2) to ask for such costs to be summarily assessed and paid forthwith (“Forthwith Request”). Extension Request 12.In relation to the Extension Request, D places much reliance on the fact that P had made 4 ex-parte applications within a time span of only 4 months after the commencement of the present proceedings on 2 June 2023 and that such applications were regarded as abusive, unmeritorious and unwarranted as the ground of its application. 13.In my view, such reliance is misplaced. I should first briefly set out the 4 ex-parte applications referred by D as follows:-
14.Given P’s First Ex-parte Application and the Subsequent Applications were applications separated from P’s Second Ex-parte Application that have already been dealt with by the Learned Judge Harold Leong with costs orders granted, they are plainly irrelevant to the Cost Order Nisi and could not form any valid basis to substantiate the Extension Request. 15.As to P’s Second Ex-parte Application, D had only been involved after the service of the Ex-parte Injunction Order together with the relevant documents on D. D’s costs of the Stay Application and the Injunction Application, which covered, inter alia, the dealing of such documents and the 3 hearings involving D, had already been provided for in the Costs Order Nisi. 16.Viewed in this light, I am not convinced that D’s Extension Request is justified. I am not aware of any reserved costs order having been granted. That said, as a matter of prudence, I will include the reserved costs, if any. Forthwith Request 17.In relation to the Forthwith Request, D refers me to the case of Midland Business Management Ltd v Lo Man Kui (No 2) [2011] 2 HKLRD 667, which was endorsed in Wing Fai Construction Co Ltd v Yip Kwong Robert (No 2) (2012) 15 HKCFAR 454. Reference is also made to Seridom Servicios Integrados Idom SAU v Heng Wen Trade Co., Ltd [2019] HKCFI 761. 18.It is trite that costs is a matter of the court’s discretion. The court is empowered to order summary assessment of costs of interlocutory application and with a tightly timed payment schedule: Order 62 rules 4, 9A and 9B, the Rules of District Court (“RDC”); Practice Direction 14.3. 19.In deciding whether to make an order for immediate payment of costs in interlocutory applications, the court may consider all the relevant circumstances, including, inter alias, the following matters: -
20.With these principles in mind, I now turn to consider P’s Forthwith Request. 21.In the Injunction Decision, this court dismissed the Injunction Application and discharged the Ex-parte Injunction Order by reason that (i) there was serious and material non-disclosure on P’s part; (ii) there was abuse of ex-parte procedure on P’s part; and (iii) the Ex-parte Injunction Order was improperly obtained by P both as a matter of procedure and substance. Given P’s application and resistance were unwarranted, so much so that an indemnity costs order against P was made, I see the force of D’s submission that an immediate summary assessment of costs should be adopted to mark the disapproval of the Court. 22.Further, the Injunction Application and D’s Stay Application are clearly severable and self-contained from the rest of the action. I am not impressed by P’s assertion that the Injunction Application is intrinsically linked to the main action and accordingly unseverable. The fact is that the subject matter of an injunction application is in some way linked to the main action does not necessarily mean that the interlocutory injunction application is not severable and self-contained for the determination of costs. 23.In the present case, D would not have otherwise incurred such costs in the ordinary course of conducting the action but solely for the Ex-parte Injunction Order and the Injunction Application. Such costs are capable of being assessed separately at this stage as the whole process relating to them have already concluded and the works done can be clearly identified for costs assessment purpose. 24.The Costs Order Nisi covers D’s costs involving several hearings, affirmations and applications which no doubt have been substantial enough to justify an immediate assessment. 25.In further consideration of the procedural history of this case, I accept D’s submission that D should not be kept out of its costs for a prolonged period pending the trial of the present action, which would highly likely take some more time in view of the development of the present case. 26.P commenced the present action on 2 June 2023. However, the pleadings have yet been closed lately. P has lately taken out another amendment summons seeking to increase the quantum of its claim by re-amendment of its Statement of Claim. At the time of the lodging of the written submissions of the Costs Summons, there have been at least 4 pending interlocutory applications with applications for leave to appeal. All were taken out by P which are pending determination. 27.P’s argument that this Court cannot review the Costs Order Nisi is misconceived. It is trite that Cost Order Nisi is just a provisional order, which is open to be varied by either party by way of summons before it becomes absolute. The variation mechanism was built-in in the Costs Order Nisi. In light of the fact that the Costs Summons was issued before the Costs Order Nisi become absolute, this Court retains the power to entertain the present application and to revisit the issue on costs : Midland 28.P also puts forward a number of intended grounds of appeal seeking to challenge the validity of the Injunction Decision. Those intended grounds of appeal do not assist P in the present application. Suffice it to say that P’s Leave Summons was dismissed in the Leave Decision of the even date, which I should not repeat here. 29.In both of the Leave Summons and the present Costs Summons, P also seeks to rely on two alleged post-hearing incidents to dispute the validity of the Injunction Decision and oppose the present application. The first one being an alleged flooding incident, which took place on 7-8 September 2023 and the second one was an email message allegedly obtained from a governmental department by P. 30.Such alleged incidents do not lend any support to P for the reasons I have elaborated in the Leave Decision. I should not burden the present Decision with the repetitive details. Suffice it to say that they allegedly took place after the Substantive Hearing. They were not in the evidence in the Injunction Application and in any event would not have any relevant or material impact on the Injunction Decision. They cannot constitute a valid ground of opposition in this application for variation of the Costs Order Nisi. 31.Much has been said by P on its disagreement with the Subsequent Decision. However, the Subsequent Decision and the Injunction Decision are strictly two separate decisions made by two different courts in dealing with two different sets of application. The Subsequent Decision was delivered after the handing down of the Injunction Decision. It was to adjudicate the Subsequent Applications made by P separately from the Injunction Application and D’s Stay Application. It is wholly irrelevant to the present application for variation of the Costs Order Nisi. 32.For the same reasons, P’s arguments on the liability and quantum of the costs order of the Subsequent Decision are strictly irrelevant to the present application. The two sets of costs orders are separate and independent from each other. 33.In P’s skeleton argument, P further asks D to bear its costs relating to the Injunction Application and D’s Stay Application and such costs to be assessed summarily and paid forthwith. Such request cannot be entertained in the absence of a summons for variation of the Costs Order Nisi taken out by P within the prescribed time. In any event, such request is unjustified for the reasons set out above. On the other hand, it demonstrates that P has regarded an order for immediate summary assessment of costs to be appropriate in the present context, which is contradictory to P’s grounds of opposition to D’s present application. 34.P’s expectation of succeeding at final trial does not advance its position any further, bearing in mind that the Costs Summons is limited to the variation of the time and manner of the assessment of such costs. It does not touch on the issue of liability. There is no room for the trial judge to overturn the costs order of an interlocutory application. DISPOSITION 35.Having considered the Parties’ submissions and all the relevant circumstances, I come to the conclusion that it is just and fair to order D’s costs to be summarily assessed and paid by P forthwith. 36.I make the following order:
37.Having considered all the relevant circumstances, I make the following costs order nisi:-
38.This costs order nisi shall become absolute in the absence of application to vary by summons within 14 days.
Ms Yung Mei Chun Jessie, Director, represents the Plaintiff, acting in person Messrs Y T Chan & Co, for the Defendant [1] The Parties’ Written Submissions:
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