Vidhya Nativivat and Others v. Vitoon Nativivat

HCA 1376/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1376 OF 2011

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BETWEEN

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D E C I S I O N

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1.This hearing is to deal with the issue of costs in respect of the decision I made in this case on 12 June 2012.

2.In the written decision handed down on that day, I indicated that the costs of the application should follow the event.  By that time, I ordered the defendant to pay for the costs of the two summonses to the plaintiffs.

3.After the handing down of the said decision, there have been various applications made by the parties to vary the costs order.  After the making of such applications, I listened to the audio recording of the proceedings to ascertain whether the costs order was made after hearing the arguments of the parties. 

4.After listening to the tape of proceedings, I find out that I had indicated to the parties in the hearing that I would deal with the costs of the summonses separately with the costs of the hearing itself.  By that time, the parties had no particular objection to the court’s proposed way of dealing with the matter.  In such case and because of the indication that I made to the parties in the hearing, I am of view that the issue of costs should be revisited.  I therefore directed that the order on 12 June 2012 not be sealed and there would be a rehearing on the issue of costs. 

5.After hearing the arguments of the parties today, I am of the view that the proper costs order in respect of this case is that the costs of the summonses should be treated separately from the costs of the hearing itself.  Since the defendant is to challenge the plaintiffs’ title to sue in this action, I am of the view that it was proper for the defendant to take out the summons dated 16 March 2012. 

6.However, in the 2nd affirmation of Vidhya Nativivat filed on 19 April 2012, the plaintiffs have already indicated to the defendant that the proper order to be made in this case is for the action to be stayed pending the determination of the plaintiffs’ right to sue in the Thai probate action.

7.I am of the view that after the plaintiffs have made such indication to the defendant, it would have been wrong for the defendant to proceed with the application for striking out or the O 14A summonses.  So in such case, I am prepared to make the following costs order: the costs of the defendant’s summons dated 16 March 2012 prior to 19 April 2012 be reserved pending the court’s determination of the plaintiffs’ right to sue in the present action, whereas the costs in respect of that summons after that date and the defendant’s summons dated 10 May 2012 be to the plaintiffs.

8.The next issues that I have to decide is whether I should order those costs to be paid in any event, and whether the court should proceed with the summary assessment of those costs. 

9.After the implementation of the Civil Justice Reform, the courts would try to reduce the unnecessary costs in respect of taxation proceedings and would usually order the costs to be summarily assessed.  I also cannot find any reason why the defendant should not be ordered to pay for the costs at this stage.  But since the court does not have time to deal with the summary assessment of costs in this hearing, I direct that the assessment be done on paper.

Mr Kenny Chun, of W K To & Co, for the plaintiffs

Mr Tan K H, of Alvan Liu & Partners, for the defendant