Techteryx Ltd v. Legacy Trust Company Ltd and Others

HCA 1906/2023

[2025] HKCFI 2056

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1906 OF 2023

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D E C I S I O N

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1.On 30 September 2024, the 5^th Defendant applied by summons for stay of this action commenced by the Plaintiff against him. The application was heard on 17 January 2025, and at the conclusion of the hearing, this Court granted the stay, with reasons to be handed down. The Court indicated at the same time that costs would be dealt with when the reasons for the decision are handed down.

2.On 24 February 2025, the Reasons for Decision were handed down, with the order (at paragraph 51) that “the costs of the application are to be paid by the Plaintiff to the 5^th Defendant, on indemnity basis, with Certificate for 2 counsel” (“24/2 Costs Order”).

3.On 10 March 2025, the 5^th Defendant issued a summons to vary the 24/2 Costs Order, to provide for the 5^th Defendant’s “costs of this action, including costs of and occasioned by the 5^th Defendant’s Summons filed on 30 September 2024, be paid by the Plaintiff to the 5^th Defendant forthwith, on an indemnity basis, with Certificate for 2 Counsel, to be taxed if not agreed” (“Variation”).

4.The Variation application is opposed by the Plaintiff, on the ground that the 24/2 Costs Order is a final costs order absolute, which can only be challenged by appeal, but not by the application for Variation, citing Hong Kong Civil Procedure 2025 para 42/5B/1 and Kung Kwok Wai David v Commissioner of Estate Duty [2022] 1 HKLRD 965.

5.As for the Variation for costs to be paid “forthwith”, the Plaintiff argued that this can only be dealt with by amendment under the slip rule, as provided for in Order 20 rule 11 RHC, by proving that it was the manifest intention of the Court on 17 January 2025 to order that the 5^th Defendant’s costs were to be paid forthwith, and that it was a mistake of not making such express provision in the 24/2 Costs Order.

6.In the skeleton submissions dated 7 April 2025 filed for the 5^th Defendant in support of the Variation summons, counsel referred to Chan Sung Kei t/a Chan Shun Kei Construction Works v Hong Kong Construction (Hong Kong) Ltd, HCCT 2/2011 21 August 2014, where this Court referred to an order as to costs made in a written decision handed down with reasons, as being by its nature an order nisi under Order 42 rule 5B. On 15 April 2025, those acting for the 5^th Defendant wrote to draw the attention of the Court to Ghazi Faidi v Qantex Capital Markets Limited & Ors [2025] HKCA 342, a decision of the Court of Appeal which was handed down on 10 April 2025. In Ghazi Faidi, the Court of Appeal explained that Chan Sung Kei should be read in the context of the facts of the case itself, when the costs order was made without the parties having been heard on costs, and when the Court had made it clear at the end of the hearing that an application for variation could be made in relation to the costs order on grounds being shown. The Court of Appeal reiterated the correct position, as stated in Kung Kwok Wai David v Commissioner of Estate Duty, to be that a costs order is prima facie an order absolute, and may only be challenged by way of an appeal, unless exceptions to the general position apply, as where the court indicates expressly or by necessary implication at the time of the making of the order that it is provisional only.

7.In the present case, it was clear that at the conclusion of the hearing on 17 January 2025, the Court had not heard submissions on costs from the Plaintiff, when it was indicated that the order of costs would be dealt with in the reasons to be handed down. In all fairness, the costs order contained in paragraph 51 of the Reasons for Decision can only be regarded as an order nisi, subject to variation which can be made by either party, with detailed submissions on costs, in light of the reasons given.

8.I am therefore prepared to entertain the application for Variation, and on the submissions filed, to vary the 24/2 Costs Order to provide for the costs of the action, including the costs of and occasioned by the summons for stay, to be paid by the Plaintiff to the 5^th Defendant forthwith, on indemnity basis, with Certificate for 2 Counsel, to be taxed if not agreed. This is because the action has now been stayed, and the costs of the action should be provided for, and there is no reason to delay taxation.

9.The costs of the Variation application are also to be paid by the Plaintiff to the 5^th Defendant forthwith, to be taxed if not agreed.

The plaintiff was represented by Loeb & Loeb LLP

Ms Natalie So, instructed by Reynolds Porter Chamberlain, for the 5^th defendant