Choy Bing Wing t/a Bing Choy & Associates v. The Hong Kong & Shanghai Hotels, Ltd

Construction List No. 8 of 1992

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: The Hon. Mr. Justice Kaplan in Chambers

Date of Hearing: 10^th August 1994

Date of Delivery/Handing Down Judgment: 17^th August 1994

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JUDGMENT

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Ruling on Costs

1.  In this troublesome case I delivered judgment on 22nd July 1994. On 14^th August 1994 I heard substantial argument on costs.

2.  I say that this case has been troublesome for several reasons. I set out some of these on page two of my judgment. In addition to these reasons one has the following problem and that is that the Plaintiff has had 4 attempts at pleading his case for fees as a structural engineer.

3.  The first attempt was in the Writ with Statement of Claim endorsed issued on 8^th January 1991. The Statement of Claim was then amended under the signature of Mr. John Scott of Counsel. When this trial opened on 1^st June 1994, Mr. Harris sought and obtained my leave to amend the Statement of Claim yet again. After the evidence was concluded and before Mr. Thomas, Q.C.’s closing submissions Mr. Harris applied for leave to amend the Statement of Claim even yet again by making a claim, never previously adverted to, that the Plaintiff was due two further stage payments under the October 1987 Agreement. I dealt with this amendment in my judgment and stated that Mr. Thomas put down a marker on the question of costs.

4.  Shortly after the writ was issued the Defendant made a payment into court on 26^th January 1991 the details of which have not been given to me.

5.  Mr. Thomas submits that as the Plaintiff only won on the basis of a very late amendment the Defendant should have all the costs of the action and he has referred me to passages in the White Book and case cited therein to support such a course. He has also referred me to 2 Hong Kong authorities namely Li Lai Fun v. Chan Yan, unreported Civil Appeal 70 of 1988 and AGW Holdings Ltd. V. Fenix (Part II) Ltd., unreported Civil Appeal 171 of 1991.

6.  Mr. Harris submits that nothing has occurred in this case to justify departure from the normal rule that costs should follow the event. He points out that as a result of my judgment the Plaintiff will be entitled to a sum in excess of $2m and that such sum far exceeds the payment into court. He agrees that the sum paid in exceeds the sums that the Plaintiff will receive for item E.

7.  Mr. Harris takes issue with Mr. Thomas’ approach because he submits that it fails to take into account how much his client might have been awarded under a quantum meruit had I not found for him on the stage payment ground. He submits that I should thus order a quantum meruit to find out what the Plaintiff might have been awarded under a head of claim subsumed by the stage payment point and only for the purposes of deciding costs. This submission only has to be stated to see how extraordinary it is and I have no hesitation in rejecting it.

8.  The plain fact of the matter is that this case was opened on the basis of an oral agreement. Perhaps after realising that this oral agreement was unlikely to succeed Mr. Harris came up with a last minute way of putting the case which found favour with me. Most of the time of the case was taken up with evidence and submissions dealing with the oral agreement point. That point failed. The success that the Plaintiff has enjoyed came substantially from the new way of putting his case.

9.  Pleading serve a useful purpose in our adversarial system in framing the issues which the court is asked to decide. On the pleadings prior to the last amendment, the Plaintiff was unlikely to achieve much success in this action. The Defendant came to meet one case but lost on another lately introduced. To fail to give effect to the way the Plaintiff’s case has evolved would be to do an injustice to the Defendant.

10.  I recognise that I have a discretion which must be exercised judicially. However there is amply authority to make the sort of order for which Mr. Thomas contends. I cannot see how justice and be done in this somewhat complicated evolving case without making an order that the Defendant shall have the bulk of the costs. I appreciate that this will impinge substantially on the judgment awarded to the Plaintiff but he only has himself to blame for dealing with his fees and this action in such an haphazard manner.

11.  I therefore will make the following orders relating to costs;

1.  The Plaintiff to have the costs up to and including 16^th February 1991 (21 days after the payment in);

2.  The Defendant to have the costs of the action thereafter;

3.  The Defendant to have the costs of the hearing on 10^th August;

4.  There will be a certificate for 2 counsel for 10^th August; and

5.  Both parties can have my leave to appeal on costs.

Mr. Jonathan Harris instructed by Iu, Lai and Li for Plaintiff.

Mr. Michael Thomas, Q.C. and Godfrey Lam instructed by Lovell White Durrant for Defendant.