Hoie Sook Fong and Another v. Ismail Halima and Another
Read the full judgment text of HCA 1974/2006 on BabelCite. This High Court CFI judgment was delivered on 4 February 2009 before Hon Sakhrani J.
Civil procedure – costs – variation of costs order nisi – third party indemnity proceedings between defendants – whether costs of indemnity claims should be borne by plaintiffs or co-defendant – held: third party proceedings are independent of main action – 2nd defendant ordered to pay 1st defendant's costs of indemnity application and resisting indemnity application – costs to be taxed.
Legal issues: Costs of third party indemnity proceedings
Outcome: Costs order nisi varied; 2nd defendant ordered to pay 1st defendant's costs of indemnity application and resisting 2nd defendant's indemnity application.
Cited by 11 cases
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HCA1974/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 1974 OF 2006 ----------------------
---------------------- Before : Hon Sakhrani J in Chambers Date of Hearing : 4 February 2009 Date of Decision : 4 February 2009 ---------------------- D E C I S I O N ---------------------- 1.This is an application by the 1st defendant to vary the costs order nisi made when I gave judgment on 24 December 2008. This application relates to the costs of the 1st defendant in relation to the claims for indemnity by the 1st and 2nd defendants against each other. 2.Although in the summons the 1st defendant asked for a variation in paragraph 1 for the plaintiffs to pay the 1st defendant her costs of the application for indemnity against the 2nd defendant and her costs of resisting the 2nd defendant’s application for indemnity, this is no longer pursued by Mr. Leung, counsel for the 1st defendant. Instead, he relies on the alternative in the summons, namely, that the costs order be varied to include the provision that the 2nd defendant do pay the 1st defendant her costs of the application for indemnity against the 2nd defendant and her costs of resisting the 2nd defendant’s application for indemnity to be taxed. 3.Having heard the submissions, I am satisfied that it was right for Mr. Leung not to proceed further against the plaintiffs in respect of the variation of the order for costs. 4.I am satisfied, as submitted by Mr. Cheung, for the plaintiff, that the claims by the 1st and 2nd defendants against each other are proceedings which are independent of the claims in the main action by the plaintiff against the 1st defendant and alternatively, against the 2nd defendant. This is clear from the passages quoted by Mr. Cheung in marginal note 16/0/2 Hong Kong Civil Procedure 2009 and paragraph 6-006 at page 119 of Andrew’s Principles of Civil Procedure. 5.I am not persuaded, and Mr. Leung has not pressed the point, that it was inevitable for the 1st and 2nd defendants to claim indemnity against each other. The 1st and 2nd defendants’ third party proceedings are in principle separate proceedings independent of the plaintiff’s main action. It was rightly pointed out by Mr. Cheung there was no issue between the plaintiffs and the defendants in their third party proceedings against each other. 6.The 2nd defendant has not appeared today on this application but it has written to the solicitors for the 1st defendant by a letter dated 2 February 2009 from its solicitors. They have made it plain that they have no objection to an order being made in the terms of the summons. 7.In the circumstances I make an order that the costs order be varied to provide for an order as follows :
Mr Wallace Cheung, instructed by Messrs John M Pickavant & Co., for the Plaintiffs Mr Herbert Leung, instructed by Messrs Fung & Fung, for the 1stDefendant Messrs Philip K. Y. Lee & Co., for the 2nd defendant, absent |
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