Chinachem Financial Services Ltd v. Century Venture Holdings Ltd

HCA 410/2013 & HCMP 2299/2013

HCA 410/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 410 OF 2013

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BETWEEN

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AND

HCMP 2299/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2299 OF 2013

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BETWEEN

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(Heard together)

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D E C I S I O N

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1.The application before me today, firstly from the defendant, is for leave to appeal in HCA 410 of 2013 in the event leave is required. Their primary position is that leave is not required.

2.The further application by the defendant is for the variation of the costs order nisi which I made when I handed down my judgment on 25 March 2014.  

3.In essence, the defendant says that they are entitled to the costs of the hearing before Godfrey Lam J on 23 August 2013 by reason of the fact that the plaintiff should have issued an originating summons rather than a summons under the action and this involved a duplication of costs. 

4.The plaintiff also has an application for variation, but more in the nature of a clarification of my costs order nisi so that it will avoid any argument on taxation as to what my order actually covers.

5.Having carefully reviewed the arguments put before me by both Mr Suen for the defendant and Mr Huggins SC for the plaintiff, and having looked at the Rules of the High Court, I am of the view that in respect of HCA 410 of 2013, leave would be required by the defendant to appeal against my decision. I however have no hesitation in granting leave as far as that is concerned because, as I see it, the defendant is already appealing in my judgment relation to HCMP 2299 of 2013.  Since the reliefs sought by the plaintiff and the orders that I made are identical in respect of both the actions, I do not believe that it would be fair or just to let one set of proceedings to go on appeal, whereas the other one is left in limbo.  So, I will grant leave as far as that is concerned.

6.In relation to the variation of the costs orders nisi, I am of the view that the costs, which were incurred in the appearance before Godfrey Lam J, are costs which are part and parcel of the proceedings as a whole.  There was no duplication of costs, and as Mr Huggins correctly points out, at that point in time there was only one set of proceedings.

7.In any event, if the matter had commenced by way of an originating summons, I would have envisaged that, more likely than not, the matter would have had to come before the summons judge where further directions would be required.

8.I am not going to foreshadow at this point in time, with the benefit of hindsight, as to whether the parties would have necessarily appeared with leading counsel or not. The fact is both parties did appear with leading counsel.  In my view, that may be in the nature of the beast itself because of the amount that was at stake in these proceedings.

9.I would therefore decline the defendant’s application for the costs before Godfrey Lam J to be made in their favour.  As regards the plaintiff’s application for variation, I will grant the plaintiff the costs order in terms of paragraph 6 of Mr Huggins SC’s skeleton submission so that it will put beyond the shadow of doubt what my costs order was intended to cover. 

10.I note that the defendant, through Mr Suen, does not object for the costs to be taxed forthwith, so that is not an issue which I need to be concerned with. 

11.As far as it was necessary for both parties to appear before me today, one, to get leave, and the other to clarify what my costs order covered, I think it will only be fair that there be no order as to costs as far as today’s hearing is concerned. 

12.That is my decision in this matter.

Mr Adrian Huggins, SC, instructed by Norton Rose Fulbright Hong Kong, for the plaintiff in both cases

Mr Jenkin Suen, instructed by Haldanes, for the defendant in both cases