Costantino Gonnella v. Dart Co Ltd

DCCJ2524/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2524 OF 2004

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BETWEEN

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Coram : H. H. Judge Chow

Dates of Hearing : 8^th August 2008

Date of handing down Decision : 18^th September 2008

DECISION

1. This is the Defendant’s application to vary the costs order nisi made by this Court on 25.7.2008.  The order nisi is that the Defendant do pay costs of this action to the Plaintiff, to be taxed, if not agreed.  The Defendant asks this Court to grant the following orders:-

(a) there be no order as to costs, or alternatively,

(b) the costs of this Action (except this hearing) be to the Plaintiff, to be awarded and/or assessed on a scale similar to the scale of the Small Claims Tribunal.

2. In the Judgment of this case, I awarded $4,600 to the Plaintiff for repairing the ceiling of his premises in May 2005.  I dismissed his claims for damages for annoyance and loss of enjoyment in the sum of $200,000.

3. The Defence Counsel argues that there was no reasonable prospect for the Plaintiff to recover more than $50,000.  Therefore this action should have been brought in the Small Claims Tribunal.  This submission cannot stand.  When the Plaintiff commenced this action on 14.5.2004, one of the reliefs he asked for is an injunction, namely, ‘(3) an order that the Defendant be restrained, by itself, its agents or servants or otherwise from repeating or continuing the said nuisance or any nuisance of a like kind’, ‘(4) alternatively or … … … that there be an mandatory injunction requiring the Defendant to identity its source(s) of leakage of water to “4B” and to stop the leakage’.  The Small Claims Tribunal does not have the jurisdiction to impose injunctive orders.  It is proper for the Plaintiff to have commenced this action in the District Court.

4. The Defence Counsel submits that it was completely unnecessary for the Plaintiff to engage his own contractor and incurred $4,600 for repainting his flat, and that there was no justified reason for him to refuse to have the screw on the u-trap be replaced.  I reject all these submissions.  I have already given my reasoning under paragraph 24 of my Judgment.

5. The Defence Counsel further submits that:-

“24. P abandoned his claim for injunctive relief (by amending the Statement of Claim) in the wasted trial hearing in November 2006.  In that hearing, the amendment together with the consequential costs order were dealt with by Deputy Judge Eddie Yip.  Accordingly, the issue of whether or not, at the commencement of this Action, it was justified for P to claim for injunctive relief, was disposed of since Deputy judge Yip had already made an order on costs to reflect the same (res judicata).

25. Further or alternatively, it is submitted that any issue of costs in relation to the claim for injunctive relief had already been disposed of as the Court did not reserve any costs order on that occasion.  If Deputy Judge Yip considered that it was justified for P to include an injunctive relief when this Action was commenced (which is denied), he could have:-

(a) reserve that issue for determination by the trial judge; or

(b) granted an order that costs in relation ot the injunctive relief be in the cause of this Action.

26. The fact was that Deputy Yip granted a costs order in favour of D without any reservation, which is supported by the rules.”

6. The Plaintiff was justified to include an injunctive relief in his claims when he commenced this action.  In paragraphs 16 to 19 of my judgment I ruled that the Defendant was responsible for the seepage of water from the Defendant’s premises to the Plaintiff’s premises.  The Plaintiff sold his premises.  To continue to sue for injunctive reliefs would serve no purpose for him.  That is the reason for abandoning his claims for injunctive reliefs.  If he had not abandoned his claim for injunctive reliefs, because he had sold his flat, I would have no hesitation in granting him the injunctive reliefs he sought.

7. The order made by Deputy District Judge E. Yip on 30.11.2006 is as follows:-

“The costs of an occasioned by this adjournment be to the Defendant to be taxed if not agreed with the Certificate for Counsel.”

8. The order only deals with the issue of adjournment.  It does not deal with the substantive merits (including the claim for injunctive reliefs) of the case.  The Plaintiff abandoned his claim for injunctive reliefs not because of having no merit in his application for this relief, but because of having sold out his flat.  The costs order made by the Deputy District Judge E. Yip does not reflect that it was not justified for the Plaintiff to have commenced his case in the District Court.

9. The Defence Counsel submits that:-

“27.        In the premises, P is not entitled to rely on the abandoned injunctive relief to justify that this case should be proceeded at the District Court.  That relief was not in issue in the subject trial before the Learned Judge.  When an amendment is made, it takes effect from the date of the original pleading and therefore, the action continues as though the amendment had been inserted from the beginning.

……

28.         Further or alternatively, P had no locus standi to claim any injunctive relief when he ceased to have any interest in the Property since the end of August 2006.  Hence, by the latest, this case should have been transferred to the Small Claims Tribunal at that time.  As P had unreasonably insisted to maintain these proceedings in the District Court and only obtain a sum which is well within the Small Claims Tribunal’s jurisdiction, the proper order is no order as to costs.” 

10. When Deputy District Judge E.Yip made the order on 30.11.2006, he ordered that the trial be adjourned for a date to be fixed for 6 days reserved in consultation with both parties’ diaries.  So the case was to proceed to trial under an order of the court.  In compliance with that order, the parties’ contested the case before me.  Therefore there is no issue of any unreasonable insistence to maintain these proceedings in the District Court on the part of the Plaintiff.

11. For all these reasons, I reject all the Defendant’s submissions and the costs order nisi is made absolute.

Costs

12. I order that the Defendant do pay costs of this hearing, to the Plaintiff, to be taxed, if not agreed.

The Plaintiffs: represented by Mr. Chan Siu Chung of M/S. S.C. Chan & Co., Solicitors.

The Defendants:  represented by Mr. Joeson Wong, instructed by M/S. Johnson, Stokes & Master, Solicitors.