Fenn Kar Bak Lily v. Goh Kim Lay and Another

HCA009177C/1992

HCA9177/1992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.9177 OF 1992

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Coram : Hon Waung J in Chambers

Date of Hearing: 14 February 2000

Date of Judgment: 14 February 2000

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J U D G M E N T

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1. This is an application by the plaintiff for basically two reliefs against the 1st and 2nd defendants.

2. The first, under paragraph 2 of the summons, is for an order that the interest on the judgment costs awarded, which had been taxed, reviewed and allowed by Master Barnes be disallowed and the period in question is something like 36 months. The second substantial relief sought under paragraph 1 of the summons is that there should be a stay of execution of the payment of the costs order because the plaintiff in her turn had some costs order in her favour, and that the two are said to be about the same or could be set off. I would deal with each of the substantial points in turn.

3. The general rule, since the decision of the House of Lords, is that interest is payable on any order of costs in favour of the parties. The date that interest will run is the date of the order and not the date of the taxation or the allocatur. What the plaintiff is seeking is to ask the court to depart from the general rule and the basis of this request is that because certain events had taken place in the course of the taxation, documents had not been given, etc, by the defendants to the plaintiff in causing delay with the taxation.

4. What is important to bear in mind is that the plaintiff had the benefit of the money, i.e. what the plaintiff would have to pay when the quantification is known. On the other hand, the defendants had been deprived of the money and that is why interest should run. There is a disagreement factually as to the extent of the fault in relation to the delay in taxation. But it seems to me clearly that interest should run for the whole period and I can see no basis whatsoever for depriving the defendants of the 36 months interest as sought by the plaintiff. So there is no substance on the first point.

5. In relation to the second point, the case of the plaintiff is even less tenable. In a normal course of litigation, there is bound to be some costs order in favour of one side and some costs order in favour of the other side. Interest will run from the date of each order until payment. Taxation may take time with each order and it is for each party to get on with the taxation of every order in its favour, or even every order not in its favour.

6. What is clear to me is that this is a case where the defendants have taxed their costs, have sought payment, have not been given payment and, therefore, they had taken the necessary steps, including the service of the necessary bankruptcy notice to obtain payment. I see no reason to defer the payment of the costs orders.

7. So far as the plaintiff is concerned, if there are costs orders in her favour against the defendants, then the plaintiff should get on with the taxing of such costs and interest, again, would be running in favour of the plaintiff against the defendants from the dates of these orders. There is simply no reason why the court should order a stay of execution on the costs orders made in favour of the defendants. Therefore, the second part of the application should also be dismissed.

8. It was agreed at the hearing that nothing should arise on paragraph 3 of the summons in view of the fact that I have refused adjournment of today's hearing. The application of the plaintiff, therefore, is dismissed with costs.

9. I will now hear the parties as to whether the parties are ready for me to assess the costs by way of gross sum assessment under Order 62, rule 9(4)(b).

Representation:

Mr Jerry Y.M. Jim of Messrs Ford Kwan & Co., for the Plaintiff

Mr Hylas Chung, instructed by Messrs Josip Ma & Co., for the 1st and 2nd Defendants