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HCMP 2233/2020
[2024] HKCFI 3146
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 2233 OF 2020
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IN THE MATTER OF Order 113 of the Rules of the High Court, Cap. 4A |
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and |
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IN THE MATTER OF an application for Summary Possession of the structure erected on the land known as All that piece or parcel of ground off Victoria Road, known as No. 410, Section 4, Mount Davis, Hong Kong (hereinafter referred to as “the Structure”) |
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BETWEEN
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THE INCORPORATED TRUSTEES OF THE SISTERS OF THE IMMACULATE HEART OF MARY |
Plaintiff |
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and |
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曹琳 |
1st Defendant |
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ALL OCCUPIERS AND EVERY PERSON IN OCCUPATION OF THE STRUCTURE ERECTED ON THE LAND KNOWN AS ALL THAT PIECE OR PARCEL OF GROUND OFF VICTORIA ROAD, KNOWN AS NO. 410, SECTION 4, MOUNT DAVIS, HONG KONG |
2nd Defendant |
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| Before: |
Hon K Yeung J in Court |
Dates of Written Submissions and Reply
by the 1st Defendant: |
17 September and
7 October 2024 |
Dates of Written Submissions and
Supplemental Submissions by the Plaintiff: |
25 September and
14 October 2024 |
| Date of Decision on Costs: |
12 November 2024 |
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DECISION
ON COSTS
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1.I refer to the Judgment handed down on 12 September 2024 (the “Judgment”). I in this Decision adopt the same terms used therein.
2.For the reasons set out in the Judgment, I dismissed both the claim and counterclaim. I made an order nisi at §105 (the “Order Nisi”) that P shall pay to D1 80% of the costs of the entire action, claim and counterclaim included, to be taxed if not agreed.
3.D1 has since written in and sought an order that the Order Nisi be varied to the extent that P shall bear 100% of her costs after 30 January 2024. In support Mr Miu has lodged his submissions and reply. Mr Chan has in opposition filed 2 sets of submissions.
4.I have considered those submissions. I have also considered the authorities cited.
5.Below is my decision.
6.The application to vary centres around the following pretrial correspondence between parties’ legal advisers (Messrs Liu, Chan and Lam for P (“LC&L”) and Messrs Cedric & Co for D1 (“C&Co”)):
(a) LC&L’s offer for P marked “Sanctioned Offer” and “Without Prejudice Save as to Costs” dated 15 January 2024 to the principal effect that (1) D1 shall deliver vacant possession of No.410, and (2) P shall pay D1 HK$350,000;
(b) C&Co’s letter for D marked “Without Prejudice Save as to Costs” dated 24 January 2024 (1) rejecting P’s offer, and (2) counteroffering that:
“… [P] shall agree that our client, her son and the grandchildren are entitled to occupy and stay in House 410 … for a period of 15 years from the date of order to be made herein. If this is agreeable to your client, the parties can then discuss on how such agreement shall be entered into e.g. whether it should be done by way of an irrevocable licence.
As regards costs, since our client is on legal aid, we will need to seek for the view of the Legal Aid Department before making any proposal on costs …”
and
(c) LC&L’s letter of 30 January 2024 marked “Without Prejudice Save as to Costs” rejecting D1’s counteroffer.
7.For the following reasons, I refuse D1’s application to vary:
(a) As is clear from the Judgment, I made the Order Nisi and ordered P to bear only 80% of the overall costs on the basis that D1 had failed in her Counterclaim;
(b) The basis of the Order was not so much this Court having obtained any issue-by-issue approach;
(c) D1’s counter-offer was not a sanctioned offer;
(d) I refer to Order 62 rule 5(1)(d), that:
“(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account—
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(d) any written offer which is expressed to be ‘without prejudice save as to costs’ and which relates to any issue in the proceedings, but the Court may not take the offer into account if, at the time it is made, the party making it could have protected his position as to costs by means of a sanctioned payment or a sanctioned offer under Order 22;”
(e) I accept Mr Chan’s submissions that there is no basis for any departure of Order 62 rule 5(1)(d). The fact that D1 was on Legal Aid by itself offers no such basis;
(f) I accept also Mr Chan’s submissions in any event that the terms of the counterclaim is vague, and failed to deal with the question of costs;
(g) On the facts of the case, in all the circumstance, and having dismissed D1’s Counterclaim, I remain of the view that the Order Nisi is fair and appropriate. I see no basis to vary my exercise of discretion.
8.I hence dismiss D1’s application for variation. I order that the Order Nisi shall become absolute.
9.D1 shall bear the costs of this application, to be assessed together with the costs of the action and be deducted or setoff therefrom. D1’s own costs shall be taxed in accordance with the Legal Aid Regulations.
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(Keith Yeung) |
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Judge of the Court of First Instance
High Court |
Written Submissions and Supplemental Submissions by Mr Jevons Chan, instructed by Liu, Chan & Lam, for the Plaintiff
Written Submissions and Reply by Mr Nelson Miu,
instructed by Cedric & Co assigned by Director of Legal Aid,
for the 1st Defendant
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