Cogi Enterprises Ltd. and Another v. Au Yee Ming and Others

HCA000488A/2002

HCA 488/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 488 OF 2002

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Coram: Deputy High Court Judge Saunders in Chambers

Date of Hearing: 13 July 2002

Date of Judgment: 13 July 2002

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J U D G M E N T

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1.In this matter the plaintiffs seek certain interim injunctions and ultimately permanent injunctions against the defendants in relation to premises in Jaffe Road. The parties have reached agreement as to the terms of interim injunctions and I have already declared the orders in terms as set out by Mr Hingorani for the plaintiffs. The only question outstanding is costs.

2.Miss Lau for the defendants correctly points to Order 29, rule 1 and directs me to the passage in Hong Kong Civil Procedure at paragraph 29/1/44 as to the usual practice as to costs on an interlocutory injunction. In the past the usual practice has been costs to the plaintiff in the cause if he is successful in getting the injunction, costs to the defendant in the cause if he is successful in resisting the interim injunction.

3.For the reasons set out in the argument by counsel in Steepleglade Limited v Stratford Investments Limited [1976] FSR 3, the preferable order to be made in an interlocutory injunction is costs in the cause. Thus, at the end of the day when it is determined who is successful, that party will have the costs for the argument on the interim injunction.

4.In this case the defendants acknowledge now that they will not defend the proceedings, as to ownership of property in the premises, the subject of the interim injunctions save as to any issues as to damages. They say that they have defences to the injunctions but that they do not propose to pursue those defences having regard to issues of costs. Their reasons for not pursuing the matter are hardly relevant. What is relevant is that they have conceded the point and at the end of the day the plaintiff is successful in retaining possession of the premises and will have permanent injunctions. For that reason alone the plaintiff ought to be entitled to his costs on these proceedings for interim injunction.

5.But there are further reasons why the plaintiff should have his costs. This is a case where I am satisfied that the 1st defendant has been actively dishonest in his conduct of the proceedings. In paragraph 9 of his second affirmation he asserts that the main door of the toilets are still kept open and all people and authorised outsiders are still using the toilets. That was a dishonest statement and, in the light of the way in which these proceedings have been conducted, can only be characterised as a deliberately dishonest statement.

6.The fourth affirmation of the second plaintiff shows that on 28 May 2002, the door was locked and a notice was put on the door by the management company asserting that the toilets were to be closed because of legal problems. The notice asserts and there is no reason to doubt it, that that was a step taken on the instructions of the incorporated owners of the building. The 1st defendant is the chairman of the committee of the incorporated owners of the building. The notice asserts, and there is no reason to doubt it, that the step was taken because of so-called legal problems.

7.The 1st defendant is primarily involved in the conduct of these proceedings for the defendants. Clearly he must have known that that was the reason. The plain inference is that he was the one who gave the instructions to the management company.

8.And, finally, a copy of the notice was dispatched to the incorporated owners association, the 1st defendant as chairman must have seen that. His assertion that the door of the toilet was still kept open was dishonest and ought to draw the sanction of costs.

9.Paragraph 10 of his second affirmation make it abundantly clear that the obfuscation on his part over premises B and GS1 was deliberately designed to confuse and delay the proceedings.

10.If a man chooses to conduct litigation on this basis and ends up having to concede his position at the end of the day, then he must also pay the costs.

11.There will accordingly be an order that the 1st and 2nd plaintiffs shall have their costs, to be taxed on a party and party basis, on the proceedings for the interim injunction. They shall have those costs together with appropriate disbursements.

Representation:

Mr Jeevan Hingorani, instructed by Messrs Deacons, for the Plaintiffs

Ms Lorinda Lau, instructed by Messrs Pang, Kung & Co., for the Defendants