Wingames Investments Ltd and Others v. Mascot Land Ltd and Others

HCA 907/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 907 OF 2011

-------------------------------

BETWEEN

-------------------------------

Before: Deputy High Court Judge Pow, SC in Chambers

Dates of Written Submissions: 15, 29 August 2012 and 6 September 2012

Date of Decision on Costs: 9 November 2012

------------------------------------------------

DECISION ON COSTS

------------------------------------------------

Background

1.This is the defendants’ application for variation of the costs order nisi made by me in the Decision delivered on 17 July 2012.  I had directed parties to provide written submissions.

2.In gist, the defendants argue as follows:

(1)  The defendants have succeeded in their application.  The normal costs order should follow the event.

(2)  The plaintiffs did not concede liability.  Nor did they offer any amount of further security.  The defendants had to go to court to obtain the further security.

(3)  The mere fact that the defendants did not obtain security in the sum put forward by them is not per se a reason to deduct or discount any costs which they would otherwise be entitled.

(4)  The conduct of the plaintiffs prolonged the hearing by last-minute applications to introduce new evidence and new grounds of opposition.

3.In opposition, the plaintiffs referred me to the cases of Liu Chun Kow Joe v Lee Sau Wing (unreported) HCPI 399/2001 and Hobbs vMarlowe [1977] 2 All. E.R. 241.  The plaintiffs submitted that where a party has succeeded in its claim but is found to have exaggerated the amount claimed, it may not be entitled to part or whole of the costs.  The Court is entitled to take that into consideration in the exercise of discretion.  The plaintiffs submitted that the amount sought by the defendants had been significantly reduced in the award and it is wrong to regard them as being successful on the issue of quantum.

4.In reply to the plaintiffs’ reliance on the above two authorities, the defendants submitted that they are distinguishable on their specific facts.  Further, both cases involved the court making serious adverse comments on the plaintiffs’ exaggeration of their claims by relying on “fanciful and unreliable evidence” or by “misusing the process of the court”.

5.I have duly considered parties’ written submissions.  In the end, I agree with the submissions made by the defendants. In particular, I accept that in making the costs order nisi, I did not pay sufficient regard to the fact that the plaintiffs never offered to pay any lesser amount of security.  Furthermore, the evidence filed by the plaintiffs on quantum suggested a sum of slightly over HK$1.1 million as being reasonable.  I eventually awarded further security in the sum HK$2.4 million. Hence, neither party had been fully successful on the issue of quantum.  I also accept that the facts of this case nowhere approach those in the two authorities cited by the plaintiffs.

6.In conclusion, I shall vary the costs order nisi in that I order the plaintiffs to pay to the defendants all costs of and incidental to the application for further security for costs, to be taxed if not agreed, on party‑and‑party basis, with certificate for counsel.  I did not, in the original costs order nisi,make any order of costs “payable in any event”.  In the absence of those words, the party having carriage of such a costs order can immediately proceed to taxation (Allied Collection Agencies Ltdv Wood & anor. [1981] 3 All E.R. 176).  Strictly speaking, it is not necessary to use the words “taxable and payable forthwith”.  However, for the avoidance of doubt, I order that the above costs order be taxable and payable forthwith as it correctly reflected my original intention.

7.As for costs of this application for variation, I see no reason other than to order that the plaintiffs do pay to the defendants all costs of and incidental to the application for variation of the costs order nisi, to be taxed if not agreed, on party-and-party basis, with certificate for counsel, taxable and payable forthwith.

King & Wood Mallesons, for the plaintiffs

Miss Eva YW Sit, instructed by Dechert, for the defendants

Please refer to CACV63/2012 for the relevant appeal(s) to the Court of Appeal.