Wong Kwai Fa and Another v. 陳慶文

DCCJ 6008/2024

[2026] HKDC 35

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6008 OF 2024

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BETWEEN

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DECISION ON COSTS

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1.By my order dated 14 October 2025, leave was granted to the plaintiffs to withdraw their summons for summary judgment with costs reserved. Parties then requested me to determine the costs of the summons on paper. This is my decision on costs after reading the parties’ respective submissions.

The plaintiffs’ claim

2.The 1^st plaintiff is the mother of the 2^nd plaintiff and the defendant. The 2^nd plaintiff is the younger brother of the defendant.

3.The plaintiffs commenced the present case on 10 October 2024 claiming that the defendant was in trespass of the 1^st plaintiff’s flat at Flat E1, 4/F, Block E, Hang Chien Court, Wyler Garden, 112 Mei King Street, Tokwawan (“the Property”). The 2^nd plaintiff relies on a general powers of attorney dated 19 December 2023 to claim conduct of the plaintiffs’ claim on the 1^st plaintiff’s behalf as well.

4.The 1^st plaintiff is the registered owner of the Property.

5.It is the plaintiffs’ case that, in 2021, the 1^st plaintiff’s husband suffered a stroke. The defendant told the plaintiffs that he was willing to assist in the care of his parents. He proposed to stay in the Property for the purpose of taking care of his parents. Relying on such representation, the 1^st plaintiff provided a copy of the keys to the Property to the defendant. In mid-2023, the 1^st plaintiff left Hong Kong to reside overseas, and gave the keys to the Property to the 2^nd plaintiff to take care of the Property. However, when the 2^nd plaintiff wanted to gain access to the Property, he found that the keys could not open the door. He discovered that it was the defendant who changed the lock to the door and resided at the Property. It is claimed that the defendant wrongfully occupied the Property without the consent of the 1^st plaintiff, and deprived the plaintiffs of the use and enjoyment of the same.

6.The plaintiffs took out a summons on 28 April 2025 to seek summary judgment against the defendant, after the defendant acknowledged service on 30 October 2024, but before any Defence was filed. The plaintiffs asked for vacant possession of the Property, and an injunction restraining the defendant from entering and using the Property. The summons was supported by an affirmation from the 2^nd plaintiff, giving evidence along the plaintiffs’ pleaded case as summarized above.

7.On 17 June 2025, after hearing the parties, I gave directions for the filing of further affirmation evidence and adjourned the summons for substantive argument.

8.On 14 July 2025, the defendant filed his affirmation in opposition. He claimed that the present case was commenced by the 2^nd plaintiff against the 1^st plaintiff’s wishes. He further claimed that he had been living in the Property since 1979, and always had the 1^st plaintiff’s consent to stay at the Property. He changed the lock to the Property in 2023 after a dispute arose with the 2^nd plaintiff and his daughter inside the Property, where allegations of theft and damage to his property was raised. He subsequently obtained the consent from the 1^st plaintiff. He exhibited a declaration signed by the 1^st plaintiff on 9 July 2025 to corroborate his case. The defendant further alluded to his disputes with the 2^nd defendant as to whether his parents should be sent to elderly homes.

9.On 10 October 2025, the plaintiffs wrote to the court to seek leave to withdraw the summons. Whilst the defendant agreed to the plaintiffs’ application to withdraw the summons, the parties could not agree on the costs.

The legal principles

10.It is trite that costs are in the discretion of the court. Mr Cyrus Lau, counsel for the defendant, submits that a plaintiff withdrawing a summary judgment application should normally have to bear the costs of the defendant. Such plaintiff bears the burden to justify why it should not be liable for costs: Yao-Hua Kang v Joe-Hsiang Lin [2022] HKCFI 3484 (Deputy Judge Le Pichon; 18 November 2022) at §28; To Yuk Fung v Wu Pun Yan [2020] HKCFI 400 (Deputy Judge Richard Khaw SC; 12 March 2020) at §§37-41. Mr Lau emphasizes that the court should not encourage parties to try their luck by issuing a summary judgment application when such a procedure is inappropriate in view of the nature and complexity of the dispute; particularly, the court has to guard against claimants, who, having decided to go for summary judgment, confidently present the factual and legal issues as simpler and easier than they really are and urge the court to be efficient.

11.Mr Simon So, counsel for the plaintiffs, stresses the mere fact that a line of defence was known to a plaintiff does not necessarily mean that he should have known that it was not appropriate to take out a summary judgment application. As Lam VP stated in Greater China Capital Inc v Gbtimes Ltd [2018] 1 HKLRD 210 at §8, much depends on the available evidence, and the assessment of the probity of proceedings by way of summary judgment is very often a matter of judgement. A wrong judgement in this respect does not necessarily call for sanction in the same manner as an abuse of the procedure.

The present case

12.Mr Lau submits that the plaintiffs knew, prior to issuing the summons, an application for summary judgment would be inapposite. On 9 January 2025, the defendant’s solicitors wrote to the plaintiffs’ solicitors to invite the plaintiffs to withdraw the present case. It was stated as the defendant’s instructions that the Property was the parties’ family home, and the defendant lived there for many years with the consent of the 1^st plaintiff and her husband. Further, it was claimed that after the defendant changed the lock to the Property, he passed the new key to the 1^st plaintiff.

13.Mr So retorted by submitting that the defendant only raised the allegation that he was specifically granted permission to occupy the Property for life and to change the lock only surfaced the first time in the defendant’s affirmation. When the plaintiffs took out the summons, they hardly knew that the defendant would be putting forward such allegation. It is further submitted that the defendant’s instructions set out in the letter from the defendant’s solicitors dated 9 January 2025 were vastly different from the defendant’s case as shown in his affirmation.

14.I do not agree with Mr So as to how the letter and the defendant’s affirmation should be read. It is true that in the declaration signed by the 1^st plaintiff on 9 July 2025, the 1^st plaintiff stated that she would allow the defendant to reside at the Property for life. But a fair reading of the defendant’s affirmation does not put up a defence that he has a life licence to stay at the Property. All he said in his affirmation was that, since the Property was a family home, he always had the 1^st plaintiff’s permission to stay at the Property, and he did. In my decision, this is no different from what was expressed in the 9 January 2025 letter. Thus, the plaintiffs did not have any reasonable basis to apply for summary judgment, as the 9 January 2025 plainly showed that there would be factual disputes which could not be determined on affidavit evidence.

15.It seems to me that the context is a factor that I should take into account in deciding the costs of the summons. The allegations and counter-allegations concern family members. Whether the defendant treated the Property as the family home, such that he could stay there as he pleased, and whether the 1^st plaintiff consented to the change of lock could have been verified amongst family members, and normally quite readily. At the moment, there is no evidence in front of me to show that the 2^nd plaintiff could not have verified with the 1^st plaintiff, his mother, as to whether she indeed gave the defendant consent to stay and change the lock. As such, I tend to think that the plaintiffs ought to have known that there would be factual disputes which would necessitate a trial; this is particularly so for the present case, which is probably a by-product of the brotherly feud between the 2^nd plaintiff and the defendant, as there is, as usual, minimal documentary evidence either way. In my decision, the plaintiffs cannot be excused for issuing the summons when the summary judgment application was plainly not appropriate.

16.As a matter of completeness, I would like to state that the defendant’s allegations that the 1^st plaintiff did not actually consent to the commencement of the present case, and her alleged revocation on 9 July 2025 of the general power of attorney granted to the 2^nd plaintiff are, in my decision, irrelevant to the consideration of costs. These allegations did not arise at any time prior to the plaintiffs taking out the summons.

Conclusion

17.I order the plaintiffs to pay for the costs of and occasioned by the summons they issued on 28 April 2025, with certificate for counsel.

18.I directed parties to file their respective statements of costs to allow me to summarily assess costs either way. The defendant claims HK$86,220.00 for work essentially covering the defendant’s affirmation in opposition and the submissions on costs. I find the claimed amount excessive with respect to the time spent by the handling solicitor on preparing and perusing the relevant documents, as counsel was retained for drafting both the affirmation and the submissions. I think some reduction is also justified on the time spent on communicating with counsel. In my decision, the reasonable amount should be HK$67,000.00.

Mr Simon So, instructed by Kingston Tong and Co, for the 1^st and 2^nd plaintiffs

Mr Cyrus Lau, instructed by K. B. Chau & Co, for the defendant