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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D E C I S I O N

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1.This is the defendant’s application taken out on 3 May 2013. This application was supported by the defendant’s affirmation dated 3 May 2013. The summons states that this is an application by the defendant for the order to be made that, one, the costs order in the judgment of His Honour Judge Chow dated the 10th day of October 2012 be varied to provide for an order that the plaintiff do pay 90% of the defendant’s costs of the counterclaim, to be taxed, if not agreed, with certificate for counsel, and the defendant’s own costs be taxed in accordance with Legal Aid Regulations. So clearly, this is an application for a variation of the costs order made on the 10th day of October 2012.

2.In the defendant’s affirmation, he set out various grounds for leave to appeal.  The affirmation itself is not the application.  The affirmation is used for the purpose of setting out the various facts or grounds to support the application.  The application itself is set out in the summons.  The summons itself is clearly for a variation of the costs order I made on the 10th day of October 2012.

3.In this regard, I refer to my judgment dated 10 October 2012.  At the end of that judgment, I set out the order relating to costs.  It states:

“I make an order nisi to be made absolute in 14 days’ time that the plaintiff do pay the defendant 80% costs 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.”

4.On the 15th day of November 2012, I heard an application for variation of costs order nisi, namely, to vary the costs I made under the said judgment.  The outcome of the application is that I make an order that the order nisi costs order I made under the judgment is not wrong and that order was made absolute. 

5.So there is a hearing of the costs order nisi.  Today, the defendant came to me to make the same application, namely, to vary the costs nisi order which was heard on 15 November 2012.  This is wrong in procedure because the variation application has been heard.  It must not be heard again.  On this basis, the defendant’s present application must be dismissed.  Even if the defendant’s present summons can be treated as an appeal against the costs order I made, there cannot be any merit.

6.On the 15th day of November, the defence counsel, Miss Gwilt, and the plaintiff’s counsel agreed that 10% was spent on the evidence relating to the counterclaim which this court dismissed.  I asked the parties how would that reflect on the costs, and Miss Gwilt informed me that the general rule is that the successful party would get the costs.  So when the evidence relating to the dismissal of the counterclaim is 10%, the defendant succeeded on 90% but the defendant has to pay 10% to the plaintiff because he does not succeed on 10% of the evidence.

7.Now, the defendant should get 90% of the counterclaim but he has to pay 10% costs of the counterclaim to the plaintiff.  That is why I make the order nisi that the plaintiff do pay the defendant 80% costs of the counterclaim to be taxed.  That is the basis of reaching the costs nisi.

8.That was also explained in the decision dated 15 November 2012 when the parties appeared before me to argue on the variation of the costs nisi.  This is set out under paragraph 1 and 2 of that decision:

(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.

9.Now, very simple.  The defendant should be awarded 90% but they have to give 10% to the plaintiff.  The result is that the defendant should be awarded 80% costs of the counterclaim.

10.So, on the merit, even if today’s application is an application for leave to appeal, I would not give leave.  On the other hand, the defendant was granted leave by the Court of Appeal to appeal against the decision I made on 10 October 2012. The matter of costs can be brought out at the end of the hearing of the appeal, depending on the outcome.  So even if today’s application is one for leave to appeal, it is unnecessary.  Due to the reasons I mentioned, I dismiss this application. 

(Discussion re costs)

11.Now, costs of this application be to the plaintiff, to be taxed if not agreed.  

(Discussion re certificate for counsel)

12.It is a very simple case.  Costs of this application be to the plaintiff, to be taxed if not agreed.  No certificate for counsel.

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

The defendant appeared in person

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