Ko Sin Yun v. Chan Chuen

DCCJ6693/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6693 OF 2004

BETWEEN

Coram:  H H Judge H C Wong in Chambers (Open to public)

Date of Hearing:  21 March 2006

Date of Delivery of Decision:  21 March 2006

D E C I S I O N

1.The 1st defendant applies today for an opportunity to make representation to me for costs after the hearing of 26 February 2006, where I made a ruling and gave full reasons for setting aside the regular judgment entered in default with a costs order awarding costs to the plaintiff.

2.The decision and order was delivered and pronounced in open court.  It was not a hand-down decision with a costs nisi order under Order 42 rule 5(b)(iii). 

3.Mr Li is very much mistaken to have considered the pronouncement in court as a costs nisi order.  Order 42 rule 5(b)(iii) is not appropriate.  Mr Ngai agrees that the court has jurisdiction to vary the costs order but only in exceptional circumstances.  The court does have jurisdiction to vary its orders any time before the orders are perfected and sealed.  Having said that, I agree with Mr Ngai, that only in exceptional circumstances will the court vary its orders.

4.In the present case the costs order was made after a full hearing of over three hours, during which time, and at the conclusion of the hearing, I had assessed all the circumstances before a decision was reached.  The costs order was made under those circumstances when the whole background of the setting-aside application and all the circumstances alleged by both parties were ventilated and taken into account. 

5.My decision and order of costs against the defendant in setting aside a regular judgment entered nine months before an application was made was what the 1st defendant should have expected to bear as it is the usual practice.  This is clearly set out in Order 13/9/16 on page 159 of the Hong Kong Civil Procedure, which says: “Costs of setting aside a regular judgment. Where the defendant has been at fault the usual practice is for the plaintiff to be awarded his costs in any event.”

6.I do not see anything unusual or any exceptional circumstances that Mr Li has brought before me today to warrant a variation of my order on 26 February 2006.  The hearing today is unnecessary and a waste of time. 

7.The costs today should be borne by the 1st defendant, to be taxed if not agreed, with certificate for counsel.

Mr Lawrence L.K. Ngai, instructed by Messrs K.C. Ho & Fong, for the Plaintiff

Mr Tony Li, instructed by Messrs Pansy Leung Tang & Chua, for the Defendant