Well Joint Trading Ltd V.Chiu Chung Chiu also known as Chiu Chung Chiu Thomas and Others

HCA 1768/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1768 OF 2011

____________

Before: Hon Au-Yeung J in Chambers

Date of Hearing: 25 September 2012

Date of Decision: 25 September 2012

_____________

D E C I S I O N

_____________

1.This is an application to vary the costs order nisi I have given under my decision dated 9 July 2012.

The defendants’ summons to extend time

2.The decision was given on 9 July 2012, the time for seeking variation expired on 23 July 2012.  The defendants were one day late in applying for variation.  The court has jurisdiction to extend time, but an applicant has to show justifiable reason for not making the application within time and that there are merits in changing the order: paragraphs 6 and 12 of Tang Man Kit & Anor v Hip Hing Timber Company Limited, CACV 137/2002, Cheung JA, 8.6.2006.

3.In the present case, the defendants file the summons for variation on 24 July 2012.  The summons for extension of time was filed only yesterday.  Apparently, the defendants had wanted to vary the costs order nisi within time, but due to a number of errors the time was not met.

4.The reasons for not meeting the time had been set out in an affirmation of Mr Cham Yiu Keung filed yesterday.  It was said that conferences were held with the defendants.  The conference which led to instructions being given for variation of the costs order was held on 21 July 2012, the Saturday preceding the deadline for filing the summons for variation.  It was intended to have the supporting affirmation affirmed on Monday and the summons filed with court at the same time.

5.A conference was arranged for the defendants to attend on 23 July 2012 at 2 pm for explaining contents of the summons and draft affirmation and to have the affirmation affirmed.  The 1^st defendant, Mr Chiu, was late by half an hour.  The affirmation was supposed to be affirmed with another firm of solicitors, but no solicitor was available for some reasons.  Having waited for about 15 minutes, a decision was made to have the affirmation done at the High Court.  At that time, the Observatory had announced that it was considering hoisting the No 8 typhoon signal between 5 and 8 pm.

6.The decision to go to the High Court was made at about 3:25 pm.  Mr Sum of the defendants’ solicitors reached the High Court at about 4:05 pm.  The queue was long for affirming.  After the affirmation was done, Mr Sum arrived at the office of the Clerk of Court at 4:20 pm. 5 minutes later than the usual closing hour for filing.

7.A party who leaves things till the last day before the deadline has only himself to blame.  In the present case, there appears to be nothing to prevent Mr Chiu from holding a conference earlier, making a decision earlier or doing things earlier.  The typhoon apparently had no impact on traffic.  As pointed out by Mr Nip, counsel for the plaintiff, whilst waiting for the affirmation to be affirmed, steps could be taken to have the summons filed first.  Apparently, there were errors in judgment.  Those who represented the defendants also did not consider the lateness by one day to be important.  That was why the summons for extension of time was filed only yesterday, apparently after Mr Nip had raised the issue in his skeleton submission that the court was already functus. The court disapproves of a party’s dilatoriness.  I am afraid I have to take a hard line to send across the clear message that the timeframes laid down by the rules are to be observed.  In the present case, there was simply no good explanation for not meeting the time, and hence no good reason to extend the time for filing the summons for variation.

Whether there are merits in changing the costs order nisi?

8.For interlocutory applications, costs to follow the event is merely one of the options open to the court.  The court should take into account all the circumstances and amongst others, the conduct of the parties and whether an issue had been taken or resisted reasonably.

9.In his skeleton submission, Mr Chai for the defendants purported to give me a score sheet in paragraph 2.  It showed that out of 7 requests made by the plaintiff, the plaintiff was only able to obtain full score on 4 of them.  The plaintiff obtained some scores on 2 of them.  The defendants were successful in resisting 1 request.  It was submitted that the plaintiff should not have made or resisted that request on which the plaintiff had failed.  Overall the defendants proposed to pay half of the costs of the plaintiff.

10.I have reviewed my own decision for those items on which the plaintiff was partly successful.  In fact, I have disallowed those portions which involved evidence, and allowed those parts that involve particulars.

11.In terms of time for argument, I do not think extra time had been taken in hearing submissions on whether some parts formed evidence and some formed particulars in relation to those requests.

12.Specifically, in terms of the request under paragraph 9(d) of the defence, Mr Nip rightly pointed out that I did not order the delivery of particulars provided the other parts on which I have ordered particulars were answered.

13.Looking at matters in the round and considering that the defendants had been successful on one request, it was still abundantly clear that the plaintiff was largely the successful party.  The hearing could not have been dispensed with, even if the plaintiff had dropped that single request on which they had failed. 

14.Overall, what I have read from the submission and what I have heard today cannot persuade me to change my view as stated in paragraph 58 of the decision.

15.There being no good reasons for extension of time and no good ground for varying the costs order nisi, I dismiss the summons for extension of time.  The costs order nisi is accordingly made absolute.

Quantum

16.On quantum, I have looked at the costs statement provided by the plaintiff. Essentially, a request for further and better particulars is a matter for lawyers and there was no need for affidavit evidence.

17.I only highlight some matters of principle, and I refrain from doing a mini taxation on each item of costs.  I disallow in principle the costs of research of the solicitors, as counsel had been involved in the present case.

18.In relation to counsel’s fees, I allow in principle two sets of counsel’s fees for the call-over hearing and the hearing before me respectively.  I am told that the defendants also instructed counsel at the call-over hearing.  These days it is good to have issues disposed of if possible at the call-over hearing and instructing counsel may be reasonable in the circumstances, but that means that the fees for the second hearing should be treated as if a refresher were charged.  It was confirmed by Mr Nip that between the two hearings, there was no further documentation or development.

19.Overall, I assess costs summarily and allow the sum of $85,000 to be borne by the 1^st and 2^nd defendants.

Mr Norman Nip, instructed by Keith Lam Lau & Chan, for the plaintiff

Mr Michael Chai, instructed by Cham & Co, for the 1^st and 2^nd defendants