Lam Po Chiu Mark v. Ion Global (Bvi) Ltd and Another

HCA 4754/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4754 OF 2003

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BETWEEN

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Before: Deputy High Court Judge Carlson in Chambers

Date of Hearing: 28 April 2006

Date of Written Submissions on Costs : 31 May 2006

Date of Ruling:  7 June 2006

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R U L I N G

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1.I am grateful to Miss Chan for the Plaintiff and to Mr Hart for the Defendants for their very full written submissions on costs following the Defendants' success in the appeal before me.

2.Clearly the costs before the Registrar should remain undisturbed.  He undoubtedly had the correct order on what he had been told.

3.The real question is what costs order should I make on the appeal.  The Defendants have succeeded but this was an appeal very much of their own making.  They had got themselves into this situation from which they were obliged to appeal.  Miss Chan says that I should order them to pay the Plaintiff's costs on an indemnity basis.  Mr Hart submits that where he has succeeded costs should follow the event.  And so there is no meeting of minds.

4.In my judgment, the costs should be to the Plaintiff.  It was perfectly reasonable for the Plaintiff to have resisted the appeal.  The Defendants offer to settle the issue of costs on the basis of the Plaintiff conceeding the appeal was made far too late.  This is a classic case of “he who is late pays”.

5.In the circumstances, the Defendants will pay the Plaintiff's costs of the appeal and also the costs of and occasioned by the consequential setting aside of the judgment in default which all relates to the internal failings within the Defendants' solicitors' offices in not appreciating what had been going on, which resulted in the Registrar making the unless order and thereafter in not having appreciated the extent of his order with the result that a default judgment was entered.

6.This having been said it is going too far to say that costs should be on an indemnity basis.  This will be party and party costs which can be taxed now and payable forthwith.  This order, it seems to me, would meet the justice of the situation.

Linda Chan, instructed by Messrs S K Lam, Alfred Chan & Co., for the Plaintiff

Andrew Hart, of Messrs Barlow Lyde & Gilbert, for the 1^st and 2nd Defendants