Sunny Tadjudin v. Bank of America, National Association

HCMP 691/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 691 OF 2012

(ON AN INTENDED APPEAL FROM DCEO NO 4 OF 2009)

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BETWEEN

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Before: Hon Kwan and Fok JJA

Date of Decision on Costs: 16 August 2012

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DECISION ON COSTS

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Hon Kwan JA (giving the decision of the court):

1.This is the application of the plaintiff to vary the costs order nisi in our decision on 29 June 2012 refusing her leave to appeal to the Court of Appeal. The order nisi was that the plaintiff should pay the defendant’s costs of her application on an indemnity basis with assessment on a gross sum basis.

2.The plaintiff seeks to vary the above to an order that the costs of her failed application be reserved or adjourned pending the outcome of the trial in the proceedings she brought in the District Court under the Sex Discrimination Ordinance, Cap 480 (DCEO 4/2009), alternatively that the costs order nisi be varied to an order that she is to pay the defendant’s costs on a party and party basis. For this purpose, her solicitors served a skeleton argument dated 13 July 2012 and a supplemental skeleton argument dated 19 July 2012.

3.There is no valid reason to adjourn the determination of the costs of the leave to appeal application, which is discrete from the proceedings to be tried in the District Court, until after the completion of that trial. That the costs she may have to pay could be substantial and may impact on the financing of her costs for the substantive trial is not a relevant consideration. If the plaintiff has real concerns about her financial ability to continue with the litigation, she should be circumspect in embarking on unnecessary interlocutory applications. Nor is there any reason why she should not pay costs of the failed application on an indemnity basis, as we have taken the view that it is without merit and should not have been brought.

4.We dismiss the application to vary the costs order nisi. We order the plaintiff to pay the defendant’s costs for this application, also on an indemnity basis, to be assessed summarily. We give the same directions as before for the assessment, the defendant’s solicitors are to serve their skeleton bill within 7 days hereof and the plaintiff’s solicitors may respond within 7 days thereafter.

5.For the costs of the application for leave to appeal, we have considered the defendant's statement of costs for summary assessment dated 18 July 2012 and the plaintiff's objections dated 10 August 2012.  On a gross sum assessment, we assess the costs payable by the plaintiff to the defendant on an indemnity basis at $62,158. 

Messrs William K W Leung & Co, for the plaintiff (applicant)

Mr Bernard Man, instructed by Mayer Brown JSM, for the defendant (respondent)