Wan Lai Kwan v. Ko Lo Man Lai
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DCCJ 692/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 692 OF 2010 ________________________
* * * DCCJ 5748/2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 5748 OF 2007 ________________________
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| LO STEPHEN | Plaintiff | |||||||||||||||||
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| WAN LAI KWAN | Defendant | |||||||||||||||||
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| Before: His Hon Judge Leung in Chambers (open to public) |
| Date of Hearing and Decision: 17 July 2012 |
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D E C I S I O N
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1.In DCCJ 5748/2007, Stephen Lo (“Lo”) sought to recover vacant possession of the property in question from Madam Wan Lai Kwan (“Wan”). In DCCJ 692/2010, Wan in her capacity as administratrix of the estate of Leung Tin Sun (“Leung”) claims against the estate of Ko Shan Ling (“Ko”) and Lo for declaration of rights and interest of Leung’s estate in the same property. Mrs Ko Lo Man Lai Patricia (“Mrs Ko”) was named as the personal representative of the estate of her husband in defence.
2.The cases were directed to be tried one after the other. Having done so, this court handed down the judgment on 29 June 2012. In respect of DCCJ 5748/2007, I found for Lo; and in respect of DCCJ 692/2010, I dismissed the claim of Wan.
THE COSTS ORDER
3.I observed that as a mirror image of her defence in DCCJ 5748/2007, Wan’s claim in DCCJ 692/2010, though apparently for the estate of Leung, practically served her personal purpose, as there was no suggestion of any other beneficiary of Leung’s estate who may benefit from these actions.
4.I therefore made a nisi order that Wan in her personal capacity shall pay the costs of Mrs Ko (Ko’s estate) and Lo, including any costs reserved. Costs shall taxed, if not agreed, with certificate for counsel. The own costs of Wan shall be taxed subject to legal aid regulations. The parties had 14 days to apply to vary the nisi order.
5.This is Mrs Ko’s application to vary the nisi costs order. She has the support of Lo as far as he is concerned in DCCJ 692/2010.
6.According to her solicitors’ letter dated 5 July 2012, it was argued on Wan’s behalf that the proposed variation seeks to alter the “findings” of the court and the “apportionment of costs” by the court. Therefore this should have taken the form of an appeal. At the hearing, Mr Ah-Weng for Wan, and I think sensibly, did not pursue any of those points.
7.The variation proposed, as I see it, is mainly for distinct orders as to costs in respect of the 2 actions respectively. This cannot be objectionable as a matter of principle.
8.Further, Wan in her personal capacity was not legally aided in DCCJ 692/2010; and Mr Chan for Mrs Ko raised the concern about the enforcement of the nisi costs order (if absolute) without any right of recourse to legal aid that covers Wan in the other capacity in that action.
9.Having said that, I still think it is necessary to reflect my above observation about the practically personal purpose served by Wan’s stance in these actions.
10.In the circumstances, I decided to vary the nisi order so that:
(1) Wan in her personal capacity shall pay the costs of Lo in DCCJ 5748/2007 (including any costs reserved);
(2) Wan, in her capacity as the administratrix of the estate of Leung and her personal capacity jointly and severally, shall pay the costs of Mrs Ko and Lo in DCCJ 692/2010 (including any costs reserved);
(3) Costs shall be taxed, if not agreed, with certificate for counsel;
(4) Wan’s own costs shall be taxed in accordance with legal aid regulations.
11.It remains that the costs of the 2 actions substantially overlapped. But the same will no doubt be addressed as a matter of agreement among the parties or, in default, in taxation of costs.
12.Had it not been the points taken as stated in the letter from the solicitors for Wan mentioned above, the application could have been disposed of on paper. As to the costs of this application, I ordered that this should be borne by Wan, in her capacity as administratrix of the estate of Leung and personal capacity jointly and severally. Her own costs shall be taxed subject to legal aid regulations. The parties had no particular view about that.
OTHER MATTERS
13.I took this opportunity to deal with a few other matters.
14.First, pursuant to previous order, Mrs Ko (Ko’s estate) has made payment into court a sum of HK$100,000 as security for costs of DCCJ 692/2010. Following the event in that case, Mrs Ko asked for the return of the sum. This was uncontroversial. I ordered that the amount (with interest, if any) be paid out of court to her through her solicitors.
15.Second, Mr Ah-Weng pointed out, and it was also uncontroversial, that the orders of this court in both actions made on 14 December 2011 should include the term that Wan’s own costs shall be taxed subject to legal aid regulations. I so ordered.
16.Lastly, the following parts of the judgment are hereby corrected:
§5, fourth line: “Ko’s father” should be amended to “her father”
§20, first line: “No.5” should be amended to “No.2”
§121, second line: “counterclaim” should be amended to “defence”
Parties’ representation: add “upon the assignment of the Director of Legal Aid” after the description of the representation of Wan
| (Simon Leung) | |
| District Judge |
Mr Jonathan Winston AH-WENG instructed by Messrs Patrick Mak & Tse for the plaintiff in DCCJ 692/2010 and for the defendant in DCCJ 5748/2007 upon the assignment of the Director of Legal Aid
Mr Alex CHAN Hor Yee of Messrs Chui & Lau for the 1st defendant in DCCJ 692/2010
Mr W K YEUNG of Messrs Tong Chan & Co for the 2nd defendant in DCCJ 692/2010 and the plaintiff in DCCJ 5748/2007
Further hearings and rulings under DCCJ 692/2010