Latangan Co Ltd v. Chu Yip Sing

DCCJ 3373/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3373 OF 2008

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Coram: His Hon Judge Leung in Chambers (open to public)

Date of hearing: 27 April 2011

Date of decision: 27 April 2011

D E C I S I O N

1.This case arose out of the dispute between the Plaintiff Manager of the residential estate in question and Chu, the Defendant, over the parking of trucks at his private car parking space there.

2.On 15 March 2011, I handed down the judgment in this case.  I ordered that Chu do remove, or cause to be removed, the truck in question from his car parking space forthwith upon the release of the same by the Manager; and that he be restrained, whether by himself, his servant, agent or otherwise howsoever, from parking any vehicle other than private motor vehicle or which will constitute breach of the DMC or Sub-DMC of the Estate and the Condition of Grant applicable to the estate.  I also dismissed Chu’s counterclaim.

3.As to costs, I make a nisi order that Chu shall pay the Manager’s costs of this action, including any costs reserved.  Cost shall be taxed, if not agreed, with certificate for counsel. By summons filed on 28 March 2011, Chu now applies for variation of the costs order.

4.The basis for the application, as stated in the summons, is that as this court did not allow the Manager’s claim for the charges of impounding and detention of the trucks parked in Chu’s car parking space.  Therefore the Manager should pay Chu’s costs of defending this head of claim.

5.O.62, r.3 of the Rules of the District Court, Cap.336 provides that if the court in the exercise of its discretion sees fit to make any order as to costs of or incidental to any proceedings (other than interlocutory proceedings), the court shall order the costs to follow the event, except when it appears that in the circumstances of the case, some other order should be made as to the whole or any part of the costs.

6.O.62, r.5 sets out the special matters to be taken into account in exercising the discretion.  In particular, sub-rule (1)(e) refers to the conduct of the parties; and sub-rule (1)(f) refers to whether a party has succeeded on part of his case, even if he had not been wholly successful.

7.For the purpose of sub-rule (1)(e), sub-rule (2) defines the conduct of the parties to include;

(1) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(2) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(3) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(4) conduct before, as well as during, the proceedings.

8.I drew the parties’ attention to Active Base Limited v Roderick John Sutton and Desmond Chung Seng Chiong, the Joint and Several Liquidators of Moulin Global Eyecare Holdings Limited, in Liquidation, HCCW 470/2005 (17 October 2008).  The court (at paras.10-11) gave a useful summary of the relevant propositions of law.  In particular:

(1) The party seeking to displace the general rule that costs should follow the event bears the burden of showing that the circumstances justify the exceptional course of such displacement.

(2) The court has a discretion to exercise whether to deprive a party of all or part of his costs in respect of those issues

(3) Where the party who has been successful overall has failed on one or more issues, particularly where such issues have occupied a significant amount of hearing time or led to the incurring of significant expense, the court may in its discretion order a reduction in the award of the costs to him.

(4) An issue for this purpose must be something so distinct or separate in itself that the decision of it constitutes an event.  It is only if it is possible to isolate an issue in the case in that it can properly be said it is unnecessarily pursued as having no bearing on the real questions in the suit that it would be proper to deprive the successful party of all costs of that issue, otherwise a more general assessment should be made.

9.The charges in question were prescribed by various car park regulations made by the Manager in its management of the car park.  Properly construed, the regulations, I found, impose liability on the owner or the user of the vehicle concerned to pay the charges.  Therefore I found that that it was not Chu, but his brother who with his consent parked the trucks at the car parking space, that was caught by the regulations and hence attracting the primary liability to pay the charges.

10.However, the central dispute in the present case was whether the trucks were parked at Chu’s parking space in breach of, among others, the various car park regulations, those prescribing the charges being part of them.  The standstill situation between the parties was contributed to by the refusal of Chu’s brother to accede to the Manager’s demand for the charges as a condition to the release of the truck impounded by the Manager pursuant to the regulations.  This caused the Manager to apply for the injunction, its major relief claimed.

11.Hence, the determination of the dispute and the Manager’s claim for an injunction already entailed the determination of the issues of authority of the Manager to make the car park regulations and to prescribe the various charges as well as the binding effect and the construction of the regulations.

12.Even accepting that the claim against Chu for the charges was a separate and distinct issue constituting an event, I find that in terms of preparation and conduct of the trial and thus the legal costs involved, such issue caused no substantial addition to what were before the parties and the court.  It might have been different, had the issue of the claim against Chu for the charges occupied a significant amount of hearing time or led to the incurring of significant expense.  In view of the brief 2-day trial, I do not think this is the kind of case.

13.Insofar as the conduct of the parties described under O.62, r.5(2) is concerned, much can be said about the conduct of Chu (and his brother) rather than that of the Manager.

14.In the circumstances, I see no substantiation of any ground along the line of O.62, rr.3 and 5, as well as that as explained in Active Base Limited, that would justify the deviation from an order that the costs of this action should follow the overall event.

15.I dismiss the application.

[Submission on costs of the application]

16.Costs of and occasioned by the application be to the Manager, which is summarily assessed at HK$8,000 payable in 21 days.

Mr SIN Ping Ho of Messrs S H Chan & Co for the Plaintiff

Mr Jerry JIM of Messrs Raymond Chan, Kenneth Yuen & Co for the Defendant