Chau Tat Wing, Suing in His Own Capacity and As the Sole Executor of the Estate of Wong Tim Lun, Deceased v. Wong Kwai Wan and Another

DCCJ 3244/2022

[2025] HKDC 872

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3244 OF 2022

________________

________________

___________________

DECISION

___________________

1.This is the plaintiff’s application (“the Summons”) to vary the costs order nisi regarding the 2^nd defendant in the Judgment dated 12 December 2024 (“the Judgment”).

2.In the Judgment, this court made the order that, inter alia, that

a.  the plaintiff’s claim against the 2^nd defendant be dismissed;

b.  the 2^nd defendant’s counterclaim also be dismissed; and

c.  costs order nisi that the plaintiff shall pay the 2^nd defendant’s cost to be taxed if not agreed, with certificates for one counsel.

3.The plaintiff is seeking for a variation of the costs order nisi to either:

a.  no order as to costs between the plaintiff and the 2^nd defendant; or

b.  costs of the plaintiff’s claim be to the 2^nd defendant and 2^nd defendant’s counterclaim be to the plaintiff.

Legal principles

4.The general legal principles regarding costs (Order 62 rule 5 of the Rules of the District Court, Cap.336H) needed not be recited.

5.With regard to costs in cases where both the claim and counterclaim were dismissed, the legal principles have been summarised in my previous decision in Skytex International Limited v Eastop Computer Consultants Limited [2024] HKDC 1822:

“6. Of course, there is no dispute on the trite principle that costs is a matter of discretion of the Court to reflect the overall justice of the case, and in exercising its discretion, the Court should take into account whenever appropriate the considerations set out in Order 62 rule 5. I need not recite all such considerations but these include the underlying objectives under Order 1A rule 1, the conduct and reasonableness of the parties etc.

7. Both counsels have taken the court to the case of Medway Oil v Continental Contractors [1929] AC88. In that case, both the claim and counterclaim over a contractual dispute were dismissed with costs and Lord Blanesburgh of the House of Lords stated:

“It is that in determining for the purpose of taxation…whether a particular issue is an issue on the claim or counterclaim or on both claim and counterclaim, the Taxing Master is not to be…enslaved by the form of the pleadings. The question must be determined as one of substances and not of form…”

8. In Wilson v Walters [1926] 1 KB 511, a case where, again, both parties failed on their respective claim and counterclaim, it was stated that:

“Whether…the costs…should be allowed in full to the successful party on the original claim, or should be apportioned as between the claim and counterclaim, depends on each case upon whether such costs were…occasioned solely by the claim or partly by the claim and partly by the counterclaim…Such costs are regarded as being occasioned solely by the claim…where (the counterclaim) is really a defence in disguise…or where both claim and counterclaim arise out of one transaction and in effect rise from the same issue.”

9. Thus the crux of the argument on costs was whether the “substance” of the claim was entirely (or at least substantially) separate from the “substance” of the counterclaim, or whether the issues concerning both the claim and counterclaim were essentially intertwined and the counterclaim was simply riding on the supposed success of the defence.”

Considerations

6.The current case concerns a discrepancy concerning the Common Boundary of certain lots between 3 Survey records (see paragraphs 10 to 20 of the Judgment). The 2^nd defendant adopted one of them, namely, 2012 Survey (paragraph 21 of the Judgment).

7.The crux of the dispute raised by the plaintiff was that the 2006 Survey was more accurate.

8.The claim against the 2^nd defendant that the Lot Index Plan produced by the 2^nd defendant according to 2012 Survey was “without proper and/or sufficient evidence and/or proper justification” etc.

9.The 2^nd defendant’s counterclaimed was for a declaration that 2012 Survey was accurate.

10.This court found that the plaintiff’s claim entirely misconceived:

a.  The public liability of the 2^nd defendant was limited under clause 33 of LSO and no such ever arose even on the plaintiff’s case (paragraphs 46 - 47 of the Judgment);

b.  even if there was inaccuracy of the Survey records, the plaintiff was suing the wrong defendant (paragraph 61 of the Judgment).

11.Furthermore, much of the court’s time was spent on hearing the experts’ opinion on the accuracy of various Survey records, and even then the plaintiff’s expert failed to show that the 2006 Survey was more accurate than the 2012 Survey (paragraph 92 of the Judgment).

12.The plaintiff was disputing the accuracy of the 2012 Survey, and the 2^nd defendant counterclaimed seeking a declaration that the 2012 Survey was accurate. The 2^nd defendant’s counterclaim was therefore necessitated and purely incidental to the dispute that the plaintiff has wrongly (as later found by the court in the Judgment) chosen to raise.

13.Both the claim and the 2^nd defendant’s counterclaim clearly“arise out of one transaction and in effect rise from the same issue”, i.e. the accuracy of the 2012 Survey. Thus, “the issues concerning both the claim and counterclaim were essentially intertwined”.

14.The cost of the action arises solely on the plaintiff’s chosen issue of dispute, and in the circumstances, especially when one further considers the questionable conduct of the plaintiff (and those advising him, including his expert) raised in the Judgment, the 2^nd defendant must be awarded all the costs of this action.

Order

15.The Summons be dismissed with costs to the 2^nd defendant payable forthwith.

16.The 2^nd defendant shall lodge and serve a summary bill of costs within 14 days of this Decision and the plaintiff shall lodge and serve a summary list of objections 14 days thereafter. The court will then assess costs summarily by way of paper disposal.

Mr Kelvin Leung, instructed by Messrs Li, Kwok & Law, for the plaintiff

Miss Bethany Chu, Government Counsel of Department of Justice, for the 2^nd defendant