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 2087

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3244 OF 2022

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DECISION

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1.This is the plaintiff’s application for leave to appeal against this court’s order regarding costs between the plaintiff and the 2^nd defendant.

Background

2.On 12 December 2024, this court handed down a judgment (“the Judgment”) dismissing the plaintiff’s claim against both the 1^st and 2^nd defendant as well as the 2^nd defendant’s counterclaim, with an order nisi that the plaintiff shall pay the costs of the action to both the 1^st and 2^nd defendant (“the Cost Order Nisi”).

3.On 27 December 2024, the plaintiff took out a Summons seeking to vary the Costs Order Nisi (the “Variation Summons”) to either there be no order as to costs between the plaintiff and the 2^nd defendant, or that the costs of the plaintiff’s claim be to the 2^nd defendant and costs of the 2^nd defendant’s counterclaim be to the plaintiff.

4.The court handed down a decision on 6 June 2025 (the “Costs Decision”) dismissing the Variation Summons with costs be to the 2^nd defendant.

5.The plaintiff now applied to seek leave to appeal against the Costs Decision.

Legal Principles

6.The general principles for leave to appeal to the court of appeal is stated in s63A(2) of the District Court Ordinance, Cap 336:

“Leave to appeal shall not be granted unless the judge…hearing the application for leave is satisfied that –

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

7.It was held that “reasonable prospect of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.” (SMSE v KL [2009] 4 HKLRD 125)

8.For an application for leave to appeal specifically against a costs order, it was held that:

“A costs order is quintessentially an exercise of discretion by a judge. An applicant for leave to appeal against such an order face a very high hurdle. The Court of Appeal will not interfere with a judge’s decision on costs unless it is wrong in principle or the exercise of discretion by the judge is plainly wrong…Further, unless it can be shown that a judge has committed a palpable error in the exercise of the discretion on costs, the mere fact that the Court of Appeal would not have exercised the discretion in the same manner as the judge is not a sufficient ground to warrant interference with the decision of the judge…” (Wong Pui Yin Georgeanna (As The Administratrix Of The Estate Of Wong Cecilia Pui Luen, Deceased) v Cheer Creation Limited And Another [2025] HKCA 716 (CAMP 51 & 52/2025, 11 August 2025)

9.Further, with regard to cases where both the claim and counterclaim were dismissed, the legal principles were trite and not disputed: SKYTEX INTERNATIONAL LIMITED (天富達國際有限公司) v EASTOP COMPUTER CONSULTANTS LIMITED (東昇電腦顧問有限公司) [2024] HKDC 1822 (see paragraph 5 of the Costs Decision).

Grounds of appeal

Ground 1

10.The plaintiff argued that the 2^nd defendant’s counterclaim is for a declaration that “the area bounded by points “S. A”, “S1” and “S2” as identified in Appendix A of the Amended Defence and Counterclaim belongs to the Government and does not form part of Lot No. 2457 S.C. and not an adaptation of the 2012 Survey.” Thus, the Costs Decision was made under a miscomprehension of fact. (paragraphs 25 and 26 of the plaintiff’s submission).

11.Firstly, the plaintiff is wrong when he referred to the 2^nd defendant’s Amended Defence and Counterclaim because the 2^nd defendant has replaced this with its Re-Amended Defence and Counterclaim and that was what the court considered.

12.More importantly, Appendix A annexed to the Re-Amended Defence and Counterclaim did not show that the counterclaim was based upon any random new plan produced “out of thin air”. Instead, it was referring to and based upon the 2012 Survey, and specifically the boundary as defined between the plaintiff’s land and the Government land (e.g. the line between points “S,A” and “AB”, the “Boundary Line”).

13.According to the 2012 Survey, the entire area to the southwest of the Boundary Line should be Government land. The fact that the 2^nd defendant only counterclaimed for part of this area (as defined by the line “S1” and “S2”) was, in effect, a gift in favour of the plaintiff. The plaintiff should have no complaint.

14.Indeed, there is no question on the absolute reliance of the 2^nd defendant’s counterclaim upon the accuracy of the 2012 Survey: the 2^nd defendant placed the point “S1” on the Boundary Line in order to define the counterclaim (and allowed this “gift”).

15.In other words, the 2^nd defendant was defending the 2012 Survey regarding to the line marked by points “S,A” and “S1” only, beyond which was a matter of dispute between the plaintiff and the 1^st defendant.

16.It is therefore clear that the 2^nd defendant’s counterclaim was based upon the accuracy of the 2012 Survey with regard to the portion that concerned the 2^nd defendant’s counterclaim. The court stated as such in paragraph 96 of the Judgment so there is clearly no misapprehension of facts as argued by the plaintiff.

17.There is no reasonable prospect of success for Ground 1.

Ground 2

18.The plaintiff argued that the court:

“has erred in law in taking into consideration…the failure of the plaintiff in proving his claim against the 1^st defendant in determining whether the plaintiff should be deprived of his costs in defending the 2^nd defendant’s counterclaim, or whether the 2^nd defendant should have his costs of the unsuccessful counterclaim.” (paragraph 28 of the plaintiff’s submission)

19.The plaintiff referred to paragraph 11 of the Costs Decision, where this court stated that:

“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”.

20.The plaintiff argued that:

“…even if the plaintiff failed against D1, it has nothing to do with D2’s unsuccessful counterclaim…” (paragraph 29 of the plaintiff’s submission).

“confused P’s claim against D1 with D2’s counterclaim against P…” (paragraph 30 of the plaintiff’s submission)

21.This argument is clearly misconceived: the 1^st defendant and the 2^nd defendant were defending the accuracy of 2012 Survey to the extent (and in the boundaries) that their interests (including the 2^nd defendant’s counterclaim) were concerned. Both were arguing in favour of the accuracy of the 2012 Survey over the 2006 Survey. The plaintiff argued otherwise.

22.The following paragraph (paragraph 12) in the Costs Decision, which the plaintiff seemed to have ignored, made this clear:

“…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…”

23.As such, it cannot be disputed that both the plaintiff’s claim and the 2^nd defendant’s counterclaim:

“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” (paragraph 13 of the Costs Decision).

24.In essence, Ground 2 is a rehash and extension of Ground 1:

a.  that the 2^nd defendant’s counterclaim was not based on the 2012 Survey and its accuracy (Ground 1); and

b.  so it must follow that the plaintiff’s claim against the 1^st defendant (disputing on the accuracy of the 2012 Survey) has nothing to do with the 2^nd defendant’s counterclaim (Ground 2).

25.I have already rejected Ground 1, so Ground 2 cannot stand.

26.I also find it confusing logic that the plaintiff also argued that :

“…P has conceded that he has to pay D2 the costs of his claim against D2”.

27.The plaintiff did not make such “concession” at trial but only at the Variation Summons. It was when the plaintiff was seeking either no order as to costs between the plaintiff and the 2^nd defendant, or that the plaintiff’s claim be to the 2^nd defendant and the 2^nd defendant’s counterclaim be to the plaintiff (see paragraph 3 of the Costs Decision).

28.Thus, the plaintiff is simply repeating one of the options that he was asking for at the Variation Summons as if this should support a ground for appeal.

29.Further, the plaintiff argued that:

“D2 has chosen to maintain his counterclaim notwithstanding that P has dropped his claim against D2.”

30.I have found no court record (either before, during or after the trial), that the plaintiff has ever applied to discontinue or withdraw any part of his claim against the 2^nd defendant. The plaintiff has also never sought to amend his pleadings to remove any claim or relief sought specifically against the 2^nd defendant, let alone removing the 2^nd defendant as a party in this action.

31.Indeed, if there was such applications, one wonders why the plaintiff did not raise this in the first instance at the Variation Summons.

32.If I am wrong about this rather serious matter (which may amount to an attempt to mislead the court), I would invite the plaintiff’s counsel to show evidence of such applications within 28 days of this Decision so the court may re-consider.

33.Otherwise, I see no reasonable prospect of success on this ground.

Ground 3

34.Confusingly, this is a rehash of the claim that the plaintiff has abandoned the claim against the 2^nd defendant. I have already dealt with this argument in paragraphs 29-33 above.

35.Further, I cannot see the relevance of the plaintiff’s citations of precedents concerning the general principle that “costs follow the event” (e.g. Jiang Zhong (姜忠) v Yeung Chun Leung & ORS [2018] HKCA 48).

36.The applicable legal principles for the current case (i.e. when both the claim and counterclaim fails) are also cited and not disputed by either party (see paragraph 9 above).

37.Similarly, I see no reasonable prospect of success on this ground.

Ground 4

38.The plaintiff argued that the court has erred in law in:

“failing to deal, or adequately deal, with P’s submission, particulars have been set out in the draft Notice of Appeal”; and that

“the court did not give any reason on why P’s submission should not be accepted” and without which, “P does not know why he lost” (paragraphs 34 and 35 of the plaintiff’s submission).

39.It is trite that:

“…in the case of discretionary exercise, as in other decisions on facts or law, the judge should set out his reasons, but the particularity with which he is required to set them must depend on the circumstances of the case before him and the nature of the decision he is giving…They need not be elaborate. I cannot stress too strongly that there is no duty on a judge in giving his reasons to deal with every argument presented by Counsel in support of his case…if it be that the judge has not dealt with some particular arguments but it can be seen that there are grounds on which he would have been entitled to reject it, this court should assume that he acted on those grounds…” (Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119)

40.Further, for an appeal against a cost order on the ground of lack of reasons:

“Where no express explanation is given for a costs order, an appellate court will approach the material facts on the assumption that the judge will have had good reasons for the award made…Where it is apparent that there is a perfectly rational explanation for the order made, the court is likely to draw the inference that this is what motivated the judge in making that order…Thus, in practice, it is only in those cases where an order for costs is made with neither reasons nor any obvious explanation for the order that it is likely to be appropriate to give permission to appeal on the ground of lack of reasons against an order that relates only to costs.” (English v Emery Reimbold & Stick Ltd [2002] 1 WLR 2409)

41.The Costs Decision was far from having made with “neither reasons nor obvious explanation for the order”: it has cited the legal principles (paragraphs 4 and 5), how the plaintiff’s claim and the 2^nd defendant’s counterclaim were intertwined (paragraphs 12-14), why the plaintiff’s claim was misconceived (paragraph 10), the time spent on the plaintiff’s failed argument (paragraph 11) and the plaintiff’s conduct (paragraph 14).

42.I find it totally unconvincing that, under the circumstances, the plaintiff could claim that he “does not know why he lost”. Indeed, it is illogical that, after advancing three grounds of appeal to argue the reasoning in the Costs Decision, the plaintiff then added a 4^th ground claiming that he did not know the reasons why he lost.

43.Thus, this ground also has no reasonable prospect for success.

Other considerations

44.The plaintiff mentioned the error in the Judgment concerning the lack of jurisdiction (the “Jurisdiction Point”) which this court has conceded in the Decision dated 30 June 2025 (regarding the application for leave to appeal by the plaintiff against the 1^st defendant) (paragraph 11 of the plaintiff’s submission).

45.It is of note that if the court takes this into consideration, it would be clear that the 2^nd defendant’s counterclaim would have succeeded but for this error on the Jurisdiction Point. Therefore, the 2^nd defendant would have been the “true winner” and be awarded costs of the action, the same result as with the Costs Decision.

Conclusion

46.In conclusion, none of the plaintiff’s proposed grounds of appeal has a reasonable prospect of success.

47.I would therefore dismiss the plaintiff’s application and award the costs of the application to the 2^nd defendant. The 2^nd defendant shall lodge and serve a summary bill of costs within 28 days of this Decision, and the plaintiff shall lodge and serve a summary list of objections 28 days thereafter. The court shall summarily assess the costs by way of paper disposal.

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

Miss Tessa Chan, instructed by Department of Justice, for the 2^nd defendant