Chan, Johnson and Others v. Best Plan Development Ltd and Another

HCA 1492/2022 and HCMP 1149/2024
(Heard Together)

[2026] HKCFI 5276

HCA 1492/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1492 OF 2022

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BETWEEN

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HCMP 1149/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1149 OF 2024

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BETWEEN

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(Heard Together)

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DECISION ON COSTS

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The Costs Order Nisi

1.I refer to my Decision handed down on 19 May 2026[1] whereby I dismissed the Best Plan Stay Summonses and allowed the Johnson & Vivian Stay Summonses.  At §46 thereof, I made a costs order nisi (the “Costs Order Nisi”) that Best Plan is to bear the costs of and occasioned by the Stay Summonses of Johnson, Vivian, Harmony and the Chan Family Trustee (if any for the trustee), with certificate for 2 counsel when 2 are engaged, to be assessed summarily.

Application to vary, and parties’ stances

2.By 2 summonses both filed on 2 June 2026 (the “Variation Summonses”), one in the HCA and one in the HCMP, Best Plan seeks an order that the Costs Order Nisi be varied.  The precise variations it is seeking are slightly different in each of the 2 actions, but in gist, it seeks that:

(a)  the costs of the Stay Summonses be in the cause of HCA;

(b)  or alternatively, the costs of the Stay Summonses be paid by Best Plan to be taxed if not agreed.

3.In support of the Variation Summonses, Ms Chick Tsz Kwan, a partner of Gallant, has filed one affirmation in each of the 2 actions.  The 2 affirmations are the same.  Mr Adrian But for Best Plan has lodged his written submissions of 23 June 2026 in support and of 21 July 2026 in reply.  Mr Joshua Yeung for Johnson and Harmony has lodged his submissions in opposition dated 7 July 2026.  No submissions have been received from Vivian.  Nor any from the Chan Family Trustee.

4.I have considered the contents of the affirmations.  I have considered the submissions and the authorities referred to therein.  Below are my consideration and decision. 

5.Mr But summarises Best Plan’s position at §1 of his first set of submissions as follows:

a.  Costs awarded in the Stay Summonses should fairly reflect the true underlying nature of the HCMP primarily as a summary judgment application by Best Plan via O.88 proceedings and the ‘case-management’ matters addressed at the hearing;

b.  ‘Costs in the cause (of the HCA Action)’ is the proper costs order upon the Court's findings, inter alia, that there was no ‘misuse’ of the summary judgment procedure.

c.  Ordering the costs to be taxed under O.62 r.9A(1)(c) is more appropriate than summary assessment in the circumstances including the amount claimed, highly duplicative works between two actions, the confusing costs position between Johnson/Vivian, and changing of legal teams by Johnson.

6.Mr Yeung submits that Best Plan conflates the Stay Summonses with the underlying O.88 application.  Best Plan’s attempt to draw an analogy between the Stay Summonses and an O.14 application is inapt.  In any event, even if such an analogy could be drawn, Best Plan should still bear the costs as it had been put on notice of the defences.  In respect of the alternative for taxation, there is no reason as to why the objections on quantum raised on Best Plan’s behalf cannot be dealt with by this Court on summary assessment.

Discussion

7.I do not find the analogy between the Stay Summonses and the underlying HCMP an appropriate one.  They are separate matters.  As I have pointed out, Master A Ho had rejected Best Plan’s suggestion for a “rolled up” hearing.  The upshot of the above is that this Court at the time of hearing the Stay Summonses did not have parties’ full evidence on the HCMP.  Parties pressed ahead with the Stay Summonses.  In the end, this Court stayed the HCMP. 

8.Best Plan says that the Stay Summons served some case management functions.  No doubt they do.  But parties sought different case management directions.  In the end, Johnson, Vivian and Harmony were the successful parties.

9.On the facts and procedural history of these matters, I fail to see why costs should not follow the event.

10.On Best Plan’s alternative position, Mr But has raised a number of matters, namely and principally, the amount involved, overlapping costs, Vivian being in person, and change of solicitors.  All those matters in my view can be dealt with on summary assessment.

Disposition

11.For the reasons set out above, I dismiss the Variation Summonses.  I make another costs order nisi (“Costs Order Nisi #2”) that Best Plan should bear the costs of and occasioned by the Variation Summonses, with certificate for one counsel, to be summarily assessed.

Further directions

12.Any application to vary the Costs Order Nisi #2 should be made by letter to this Court within 7 days from the date hereof.  Should there be such an application, further written directions will be given, and the directions in the paragraph below will be put on hold.

13.In the absence of any application to vary the Costs Order Nisi #2:

(c)  the claiming parties shall file statements of costs within 21 days from the date of this Decision, which statements should cover the costs claimed both in respect of the Stay Summonses and the Variation Summonses;

(d)  the paying party shall file statements of objections 14 days thereafter, and

(e)  the claiming parties shall file replies 7 days thereafter;

(f)  unless contrary directions be given, this Court will then proceed with the summary assessment on the papers.

Submissions and Reply by Mr Adrian But, instructed by Nixon Peabody CWL,

for the 1^st Defendant in HCA 1492/2022 and the Plaintiff in HCMP 1149/2024

Submissions by Mr Joshua Yeung, instructed by CLKW Lawyers LLP,

for the 1^st and 3^rd Plaintiffs in HCA 1492/2022

and the 1^st Defendant in HCMP 1149/2024

[1]  [2026] HKCFI 2784.