Chiew Po Yin v. The Sycamore Co-operative Building Society Ltd

HCAL 132/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 132 OF 2005

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Before: Hon A Cheung J in Court

Date of Hearing: 25 April 2006

Date of Judgment: 25 April 2006

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JUDGMENT  (ON COSTS)

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1.The only outstanding matter in these proceedings before the Court now is the question of costs.  The substantive application has been effectively disposed of by the undertakings offered by the respondent through counsel in the afternoon of today’s hearing. 

2.So far as costs is concerned, the normal rule is that costs should follow the event.  In so far as the event in these particular proceedings is concerned, it is plain from a careful reading of the papers filed by the applicant in these proceedings that the applicant seeks the setting aside of the Small Claims Tribunal award and the District Court judgment on the ground that neither the Small Claims Tribunal nor the District Court has the necessary jurisdiction to hear the respective claims that have been filed by the respondent against the applicant. 

3.A necessary corollary of that contention is that after the setting aside of the District Court judgment, the action in the District Court should also go.  In fact, the same can be said in relation to the Small Claims Tribunal proceedings.  This is so even though the notice of motion only refers to the quashing of the award and the judgment in terms of substantive relief. 

4.The undertakings offered by counsel for the respondent which effectively disposed of the substantive application gave the applicant precisely what he sought in these proceedings in terms of what I have just outlined.  So far as the event is concerned, in my judgment, the applicant has effectively got what he asked for in these proceedings.  That is an important consideration to bear in mind. 

5.Even apart from the undertakings given, having listened carefully to the submissions of counsel acting for both sides and having read their detailed written submissions, I can indicate for the purpose of considering the question of costs, that I am inclined towards accepting the arguments of the applicant on the substantive issues, although as events have developed, it is now unnecessary for this Court to express any final view on the matter.  However, for the purpose of considering how the Court should excise its discretion on costs, I think it is proper for the Court to take into account its own view on the substantive merits of the matter.  That also is a relevant consideration. 

6.I have borne in mind the background of the case; I have also borne in mind the rather lengthy correspondence between the parties, leading up to the commencement of the present proceedings as well as the correspondence exchanged after the commencement of proceedings.  I have particularly paid attention to whether the applicant, who is essentially successful at the end of today’s hearing, has done anything or omitted to do anything, whether prior to the commencement of proceedings or after their commencement, which has had the effect of unreasonably or unnecessarily increasing the costs of these proceedings. 

7.In this regard, I have, in particular, paid attention to an offer made by the respondent by letter dated 16 November 2005.  In that letter, the respondent offered to have the award and the judgment set aside and have all the disputes between the parties referred to the Registrar for decision as per section 49 of the Co-operative Societies Ordinance, Cap. 33.  That, on the face of it, matched the substantive relief sought in the notice of motion but, as I have explained at the outset of this judgment, a careful reading of the papers filed by the applicant would leave any reader without any doubt that the applicant is saying that neither the Tribunal nor the District Court has the jurisdiction to hear the parties’ disputes. 

8.So not only should the award and judgment be set aside, the proceedings before the Tribunal and District Court, once the award and judgment have been set aside, should also be discontinued.  That, however, never formed part of the offer made by the respondent in its letter dated 16 November 2005.  Instead, that letter specifically preserved the respondent’s position on the propriety of the District Court action.  That was so even though, both before and after the writing of that letter by the respondent’s solicitors, the applicant’s solicitors had asked for not only the setting aside of the District Court judgment but also the dismissal or discontinuation of the District Court action.  In relation to that request, whether before or after 16 November, the respondent’s solicitors never made any positive response. 

9.Putting the matter shortly, I do not think the offer of 16 November 2005 which was repeated on one or two occasions thereafter by those representing the respondent had the effect of giving the applicant what he really wanted in these proceedings.  Put another way, the applicant would still have to continue with these proceedings and pursue them to their logical conclusion, notwithstanding the repeated offers. 

10.Having said all that, I must point out that the applicant could have done better in the correspondence in specifying the real concern of his, i.e. that there should not only be the setting aside of the judgment and award, but also the dismissal or discontinuation of the District Court action.  This was particularly so when his own notice of motion did not mention specifically any relief in relation to the discontinuation or dismissal of the District Court action as such.  It should have been a reasonable response from the applicant to specifically raise the concern in question with the other side and see if the other side was prepared to go further than the offer of 16 November 2005 and deal specifically with the District Court action.  If the applicant had done so, whether this hearing would have been necessary would be an open question, judging from what actually happened today, i.e. the readiness of the respondent’s counsel to give the undertakings.  I do take that fact into account in considering whether there are special circumstances which would entitle the respondent to ask the Court to depart from the normal rule that costs should follow the event in the present case.

11.Another matter that I do take into account is that the whole dispute involved in the present judicial review proceedings stemmed from the failure or refusal of the applicant to pay the monthly membership fees as a member of the co-operative society as a means to further the complaints that he had been making against the respondent.  That was the genesis, looking at the matter from that standpoint, of the award and the District Court action and judgment which, of course, led to the present proceedings.  Whether the applicant was right not to pay membership fees for that sort of reasons will have to be decided by the Registrar pursuant to section 49 and pursuant to what the parties have now agreed should be the way forward.  That, however, does not stop this Court from forming its own view on the propriety of the action and I think, even for the question of costs, the Court can form some view which, of course, will not be binding on anybody, still less the Registrar who, according to the applicant’s own case, is charged exclusively with the responsibility to decide the dispute in question. 

12.Having listened carefully to the submissions of counsel, I am not sure if I find the applicant reasonable or justified in using his refusal to pay membership fees as a means to press his complaints.  He could and should have done better, particularly if he had cared to seek legal advice.  So far as I can see, payment of monthly membership fees and the various complaints that the applicant has got against the society are two separate and distinct matters, though related in a very general sense.  As I say, the ultimate decision will have to be made by the Registrar pursuant to section 49.  It is not my intention to usurp the function of the Registrar in this regard and, as I have emphasised, what I have said is not binding on the Registrar or the parties as such apart from this question of costs and, as I say, I do take this factor into account. 

13.I have borne all relevant circumstances and matters in mind; I have borne the normal rule of costs firmly in mind; I have considered whether the applicant has done or omitted to do anything which may have had an unreasonable or unnecessary effect on the costs that have been incurred.  In my judgment, the fairest order to make in relation to the present proceedings would be to award the applicant with 50% of the costs of the proceedings, to be taxed if not agreed.  I so order.  

Mr Hectar Pun, instructed by Messrs Boase, Cohen & Collins, for the Applicant

Mr Robert Pang, instructed by Messrs Liu, Choi & Chan, for the Respondent