Wesoft Nationmark Ltd v. Nationmark (H.K.) Ltd and Others

HCA 724/2019 and

HCA 1317/2019

(Consolidated)

[2024] HKCFI 3015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NOS 724 OF 2019 AND 1317 OF 2019

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BETWEEN

(Consolidated by the Order of Master Lai dated 30 August 2019)

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D E C I S I O N

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1.This is P’s application for leave to appeal against this court’s Judgment dated 5 July 2024 (“Judgment”), whereby this court acceded to D1–D3’s appeal against a costs order made by Master Grace Chow dated 21 September 2023. In this Decision I shall adopt the abbreviations used in the Judgment.

2.P has put forward 3 Grounds of Appeal in its draft Notice of Appeal.  P’s contention has been summarised in paragraphs 3 and 4 of its Skeleton Submissions as follows:

“3. Had this correct approach [in China Venturetechno International Co Ltd] been applied, Master G Chow’s Costs Order could not be said to be demonstrably miscarried or flawed. It was in line with Sakhrani J’s approach in Paul Y ITC Construction Ltd v Kin Shin Company Limited [1999] 1 HKC 511, which this Court did not address or distinguish. Instead, this Court erred in criticising the matters taken/not taken into account by Master G Chow when in fact those were matters which Master G Chow (a)  were entitled to consider or (b)  had in fact taking into account despite this Court’s remarks …

4. Further, while it is common ground that costs are to follow the event, this Court identified the wrong ‘event’. Had the ‘event’ been rightly identified, Master G Chow’s Costs Order could not be said to be demonstrably miscarried or flawed …”

3.As to the correct approach to be applied, this court has adopted in paragraph 8 of the Judgment the test set out by Sakhrani J at page 515A of Paul Y ITC Construction Ltd (ibid).  At page 515C, Sakhrani J expressly stated that the Court of Appeal in China Venturetechno International Co Ltd in their judgment dated 3 July 1996 considered that this was the correct test.  In the premises, the alleged error in applying the wrong approach does not exist at all.

4.P criticises this court’s finding at paragraph 14 of the Judgment that “whether the FBP Hearing would have taken place in any event is an irrelevant factor by itself”.

5.I have given my reasons at paragraphs 14 to 16 of the Judgment as to why I came to that conclusion.  I do not consider that P has mounted any reasonable challenge to the analysis.

6.Moreover, the Master’s failure to give weight to “D1–D3’s successful opposition to the large number of FBP requests” is starkly reflected in the fact that despite being generally successful, D1–D3 are nevertheless required to pay costs to P.  Indeed, as submitted by D1–D3, P has not sought to dispute that D1–D3 are generally the successful parties under P’s application for FBP.

7.As to the question of what was the relevant “event”, in applying the starting point that costs are to follow the event, I agree with D1–D3 that the “event” must be that D1–D3 were successful in resisting 12 requests, that P was successful in obtaining 3 requests, and that P was unsuccessful in obtaining 3 requests upon clarification from counsel.  This is precisely a result of 12:6 in favour of D1–D3, which this court identified at paragraph 19 of the Judgment.

8.For the reasons set out above, I am not satisfied that the intended appeal by P has a reasonable prospect of success, or there is some other reason in the interests of justice why it should be heard.  Accordingly, P’s application is dismissed.

9.I further order that the costs of and occasioned by P’s application be paid forthwith by the plaintiff to the 1^st to 3^rd defendants, such costs are to be taxed if not agreed.

Written submissions by Mr Byron Chiu, instructed by Messrs Kao, Lee & Yip, for the plaintiff

Written submissions by Mr Thomas Yeon, instructed by Messrs Sit, Fung, Kwong & Shum, for the 1^st to 3^rd defendants