Ng Yin Nei v. Lee Chick Choi

DCCJ 563/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 563 OF 2010

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Before: His Honour Judge Chow in Chambers

Date of Hearing: 15 November 2012

Date of Decision: 15 November 2012

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D E C I S I O N

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1.The plaintiff should be awarded 10% of the costs in the trial of the defendant’s counterclaim because the defendant did not succeed in winning all the items of his counterclaim.

2.The defendant should be awarded 90% of the costs in the trial for the counterclaim.  As a result, the defendant is awarded 80% costs of the counterclaim.

3.The principle referred to in the cases cited by the defendant is not helpful to him to overturn the costs order nisi.  The order nisi costs order I made is not wrong.  So I hereby make it absolute.

4.Regarding the determination for the costs regarding for today’s hearing, I have to bear in mind that the defendant is entitled as of right to advance argument on costs relating to the counterclaim.  In essence, the arguments should be included as part and parcel of the original hearing of the counterclaim, if not for the fact that I made for an order nisi for costs.  The fact that the plaintiff did not apply to vary the costs nisi cannot preclude the defendant to exercise his right to advance the said arguments.  Therefore, the costs for today’s hearing should be included as part and parcel of the original hearing.

5.I therefore order that the costs for today’s hearing be costs in the cause of the trial of the counterclaim, to be taxed if not agreed, with certificate for counsel.  The defendant’s own costs be taxed in accordance with Legal Aid Regulations. 

Mr Lester Lee, instructed by Chiu, Szeto & Cheng, for the plaintiff

Ms Angela Gwilt, instructed by Huen & Partners, assigned by the Director of Legal Aid, for the defendant

Please refer to HCMP1131/2013 for the relevant appeal(s) to the Court of Appeal.