Axa China Region Insurance Co Ltd v. Lin Kwai Ying Katie

HCA 1228/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1228 OF 2011

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BETWEEN

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Before: Hon Chung J in Chambers

Date of Last Written Submissions on Costs: 22 June 2012

Date of Handing Down Decision on Costs: 9 July 2012

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DECISION ON COSTS

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1.A Decision was handed down on 25 April 2012 in relation to the defendant’s application to strike out the amended statement of claim.

2.The plaintiff has since filed and served a re-amended statement of claim (on 15 May 2012).

3.Directions were given on 25 May 2012 for:

(a) written submissions on costs to be lodged with court and served;

(b) statement of costs and statement of objections to be lodged with court and served.

The plaintiff has lodged with court both the written submissions and the statement of objections (on 22 June 2012); the defendant has done so earlier (on 8 June 2012).

4.The plaintiff argues in the above written submissions that the costs of the defendant’s above application should be in the cause of this action.  The reasons given in support are in short:

(1) the said application only succeeded on a technicality; that is, pleading deficiencies;

(2) indemnity costs are not justifiable.

5.I disagree with the plaintiff’s argument set out in para 4(1) above.  The functions of pleading have been referred to briefly in para 20 of the 25 April 2012 Decision; those functions are also well known to litigation lawyers.  They will therefore not be repeated here.

6.Once it is recognised that pleadings have practical functions to serve, objections based on substantive deficiencies therein cannot properly be called a technicality.

7.There is thus no valid reason to depart from the usual rule that costs should follow the event.

8.The defendant should accordingly be awarded the costs of the above application.

9.On the other hand, I agree with the plaintiff the said costs ought to be assessed on party-and-party basis.

Mr Martin W H Wong, instructed by Chong & Partners, for the plaintiff

Mr Yang-Wahn Hew, instructed by Gall, for the defendant