Chow Shing Kee Investment Co Ltd v. The Incorporated Owners of Malahon Apartment and Others

HCMP 1729/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1729 OF 2011

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D E C I S I O N

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REASONS FOR DECISION ON COSTS

1.On 27 April 2012 I gave a decision on the submissions of no case to answer by the Defendants at the close of the Plaintiff’s evidence in regard to the in these Miscellaneous Proceedings.  Pursuant to the decision I made, which was to the effect that the 2^nd to 11^th Defendants had no case to answer, proceedings against those defendants ceased.  However the matter of costs remained for determination.  Accordingly on 19 June 2012, on the application of the parties, I heard submissions on costs.  At the conclusion of the hearing I accepted the submissions made on behalf of the 2^nd to 11^th Defendants and awarded costs in favour of those Defendants on a party and party basis.

2.Submissions were addressed to me on behalf of the Plaintiff to the effect that matters of costs should be deferred until after a forthcoming appeal.  I was not persuaded that would be an appropriate course of action.  I do not accept that any good reason has been given why costs should not now be dealt with.  Moreover, I do not agree that matters relevant to the liability for costs as between the Plaintiff and the 2^nd to 11^th Defendants are to be found in the future proceedings between the Plaintiff and the first Defendant.

3.Nor was I persuaded that the 2^nd to 11^th Defendants should receive only a proportion of their costs on the basis that their success on the "no case" submission was in regard to a narrow legal issue which could, if considered by itself, have been dealt with quickly.  While I agree that the 2^nd to 11^th Defendants could have taken that point as a strikeout application at some earlier stage, I do not think that they are to be deprived of a proportion of their costs simply on that basis.  I do not accept that the 2^nd to 11^th Defendants can be said to have improperly or unnecessarily raised issues in their defence.

4.Nor on the other hand was I persuaded by the 2^nd to 11^th Defendants that the circumstances were such as to entitle those Defendants to costs on an indemnity basis.  My views on this were, in part coloured by the submissions made on behalf of the Plaintiff to the effect that the 2^nd to 11^th Defendants would have mitigated the overall cost of proceedings by adopting a different tactical approach to the litigation.  Accordingly, I ordered costs in favour of the 2^nd to 11^th Defendants on a party and party basis.

5.I record, for the avoidance of doubt and for the assistance of the taxing master, that the costs of the 2^nd to 11^th Defendants including the appearance by counsel, at the hearing before me on 19 June 2012, are to form part of the costs encompassed within the Order referred to above.

6.For completeness I record that submissions were addressed to me as to whether a costs order in "Bullock” form might be appropriate.  I made no decision on that application of the Plaintiff, this being a matter to be addressed as and when costs as between the Plaintiff and the 1^st Defendant are addressed.  Those costs have been reserved, by agreement between the relevant parties, for further determination.

Mr Colin Wright and Mr Iain Brown, instructed by Messrs Orrick, Herrington & Sutcliffe, for the Plaintiff

Mr Andrew Mak, instructed by Messrs Tung, Ng, Tse & Heung, for the 1^st Defendant

Mr Bernard Man, instructed by Messrs Wong, Hui & Co, for the 2^nd and 7^th Defendants

Mr Patrick Chong, instructed by Messrs T Y Lam & Co, for the 3rd-6th and 8th-11th Defendants