Asia Pacific Lasik Centre Ltd v. Quality Healthcare Medical Services Ltd and Another

HCA 2347/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2347 of 2004

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BETWEEN

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Before: Deputy High Court Judge Saunders in Chambers (Open to public)

Date of Hearing: 15 August 2005

Date of Judgment: 23 September 2005

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JUDGMENT

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1.This is an appeal by the Plaintiff, (Asia Pacific), against the decision of the Master in relation to costs.  The order made by the Master was that the costs on an Order 14 Application, and a subsequent Summons to withdraw that Application, (the Withdrawal Summons), be costs in the cause, and that the costs of the hearing at which the withdrawal summons was dealt with, beat to the Defendant's (collectively, Quality Healthcare).

2.Both counsel were agreed that the proper basis upon which an appeal against a costs order is made, is that set out in Hong Kong Civil Procedure, 2004, §§58/1/6 and 62/2/11.  Asia Pacific must establish that the order was either unreasonable or that the Master erred in law, or took into account matters which he should not have taken into account, or failed to take into account matters which he should have taken into account.

3.The primary complaint made against the order that costs on the Order 14 Summons and the Withdrawal Summons the costs in the cause was that the withdrawal of the Order 14 Summons had been brought about by a subsequent change in position and clarification of its position by Quality Healthcare.  Mr Liu for Asia Pacific went to an extraordinary length, set out in a 14 page written submission, in which he sought to establish that the Master had approached the matter from the wrong basis.  While it may be the case that another judge may have dealt with the matter on a different basis, nothing that Mr Liu has said persuades me that the Master was either wrong in law or unreasonable in the approach he took.

4.It is a common practice that upon the issue of a writ an Order 14 Summons is issued.  It is not in every case, no matter how clear, that Order 14 will be appropriate.  Careful consideration ought to be given by solicitors before the issue of an Order 14 summons, for, as in this case, circumstances may result in that summons being withdrawn.  If as a result of premature action an Order 14 summons must be withdrawn, then it is likely that costs against the applicant will follow.  It is clear from the record that the Master was thoroughly familiar with the matter having dealt with it three separate prior occasions.  He was plainly in the best position to make the appropriate assessment as to costs.  In my view the Master cannot be faulted in taking the middle ground and ordering that costs be in the cause.

5.The question of the costs argument was straightforward and should have been brief.  The record shows that the hearing before the Master lasted for 1 hour and 42 minutes, of which 20 minutes was devoted to the delivery of the reasons for the orders made.  It was a hearing which ought to have taken no longer than 10 minutes, and should not have required the Master to spend so much time in giving reasons for his decision.  Again, in those circumstances, the Master cannot be faulted in ordering costs for the hearing of the argument for costs on the Withdrawal Summons to be to the defendants.

6.There is no basis upon which it can be said either that the decision of the Master was unreasonable or that there was any error of law.  The appeal is dismissed.

Mr Liu Chin-yu, instructed by Messrs Ellen Au & Co for the Plaintiff

Mr Michael K W Liu, instructed by Messrs P C Woo & Co for the Defendants