Read the full judgment text of DCCJ 5012/2007 on BabelCite. This District Court judgment was delivered on 26 May 2010 before Deputy District Judge C. Lee.
Civil law – costs – indemnity basis – whether unsuccessful defendant's defence warrants order for costs on the indemnity basis – defendant tenant of property contested possession order by relying on alleged hearsay promise by plaintiff's late husband that family could reside for as long as they wished – HKSAR – District Court – DCCJ 5012/2007 – MAN TIM WAN v CHUNG TAI HOI – Deputy District Judge C. Lee – 26 May 2010 – principles for ordering costs on indemnity basis restated from Choy Yee Chun v Bond Star Development Ltd [1997] HKLRD 1327, that such costs may be ordered where proceedings are scandalous, vexatious, malicious, pursued for an ulterior motive, oppressively, or amount to an affront to the court, and apply equally to those who defend – further principles drawn from Nina Kung CACV 460 of 2002 and CAVC 67 of 2003 and applied in ChinaChem Charitable Foundation v Chan Chun Chuen HCAP 8/2007, that knowingly participating in a dishonest design to put forward as genuine a case which is not genuine is a special and unusual feature warranting indemnity costs – court rejected mere exercise of right to defend as insufficient – hearsay promise not raised in original defence or notice of opposition in the Lands Tribunal indicated belated fabrication – DW1 and DW2 (defendant's sons) controlled the litigation and spoon-fed untruthful version; DW1 found incredible and arrogant, DW2 found dishonest – defendant knowingly participated in dishonest design – court's discretion to make non-party costs order under section 53 or 53A of the District Court Ordinance and Order 62, r.6A noted but not exercised as plaintiff did not seek such order – counsel for both parties praised for pragmatic and helpful conduct – costs order nisi varied: defendant to pay plaintiff's costs of the action on indemnity basis with certificate for counsel, to be taxed if not agreed; costs of and occasioned by plaintiff's summons dated 18 May 2010 to plaintiff with certificate for counsel; defendant's own costs taxed in accordance with Legal Aid Regulations.
Legal issues: Whether costs on indemnity basis should be ordered against the Defendant
Outcome: Plaintiff's summons to vary the costs order nisi dated 19 April 2010 allowed; costs order varied to one on the indemnity basis with certificate for counsel.
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