Case Document

100%Judiciary

HCA009218C/1999

HCA 9218/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 9218 OF 1999

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BETWEEN
	DARYL MARK O'SHAUGHNESSY	Plaintiff

	AND

	DAVID WILLIAM GUNSON	1st Defendant
	PACIFIC SUPERANNUATION FUND LIMITED	2nd Defendant

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Coram: Hon Chung J in Court

Date of Hearing: 13 April 2000

Date of Decision: 13 April 2000

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DECISION ON COSTS

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Costs

1. At the end of the hearing of the Plaintiff's Notice of Motion for the contempt of the 1st Defendant, the Plaintiff asks me to exercise my discretion to fix a gross sum for the costs thereby incurred instead of taxation, pursuant to R.H.C. Ord. 62 r. 9(4)(b). For that purpose, the Plaintiff has earlier on asked for, and obtained, an order dated 30 March 2000 giving directions including the following:

"(5) The Plaintiff be at liberty to produce at the hearing a gross sum bill of costs for the court to consider pursuant to Ord. 62 r. 9(4)(b) of the Rules of the High Court."

I understand that the order has been served on the 1st Defendant. Further, a "Plaintiff's Gross Sum Bill of Costs" dated 10 April 2000 was prepared and served on the 1st Defendant. Further, an updated "Plaintiff's Gross Sum Bill of Costs" dated 13 April 2000 was also prepared and served. I understand that the updated bill contains a number of minor revisions as well as the additional costs incurred as a result of the hearing on 12 April 2000.

2. The 1st Defendant has indicated that he had no objection to the costs being fixed today instead of being taxed, nor did he have any objection to the items or amounts set out in the updated bill.

3. Having considered the whole circumstance of the proceedings, I consider that my discretion should be exercised to fix a gross sum pursuant to R.H.C. Ord. 62 r. 9(4)(b). Further, I find that it is appropriate to approach the matter adopting the standard applicable in a taxation of costs on an indemnity basis (see Ord. 62 r. 28(4A).

4. The Plaintiff's solicitors have fairly accepted that some of the items in the updated bill are related to the application for the extension of the Prohibition Order against the 1st Defendant. The Plaintiff argues however that the Prohibition Orders were necessary for the committal proceeding, that is, they were needed to ensure the 1st Defendant's presence in Hong Kong. At one stage I considered that these costs should not be allowed but having heard the Plaintiff's argument, I agree with it and find that such costs are necessary in the context of this case.

5. However, I still consider that part of counsel's brief for the ex parte hearing on 1 March 2000 should only be related to the application for leave to apply for committal. This is item (IX)(5)(ii) on page 10 of the updated bill in the sum of $50,000.00. I understand this sum was the brief of counsel for both the hearing on 1 March 2000 and that on 10 March 2000. Instead of splitting the sum into 2 halves, I consider it appropriate to attribute $35,000.00 for the hearing on 1 March 2000 and $15,000.00 for that on 10 March 2000 because:

(a) 2 applications were dealt with on 1 March 2000 whereas the hearing on 10 March 2000 was only related to the Prohibition Order against the 1st Defendant;

(b) in any event, the hearing on 10 March 2000 was in the nature of a continuation of the application for the Prohibition Order on 1 March 2000.

I further consider that $20,000.00 of the $35,000.00 attributable to the hearing on 1 March 2000 was related to the application for leave. Ord. 52 r. 2(4) indicates that an application for leave needs not be (1) attended by the applicant, or (2) determined in open court, and can be dealt with on an ex parte basis. I also understand that the usual practice is for a "paper" application to be made. There is no valid reason for that practice to be departed from in this case. For this reason, I will disallow $20,000.00 out of item (IX)(5)(ii) on page 10 of the updated bill. The updated bill of costs is otherwise allowed.