Philip Douglas Coate v. William Alan Terence Crawley

HCA 728/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 728 OF 2012

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DECISION ON COSTS

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1.The plaintiff applied for summary judgment. The defendant resisted. The original defence did not respond to the plaintiff’s pleading of Brazilian law. The original defence pleaded negligence and fraud as well.

2.On 19 May, the defendant put in a wholesale amendment to plead Brazilian law, change ground of negligence and drop the issue of fraud.  The plaintiff then stopped pursuing the application for summary judgment. 

3.The defendant resists costs on the ground that the original defence is good enough to oppose the application for summary judgment.  The defendant also submits that they had not delayed the procuring of Brazilian legal evidence.  I do not agree with this.

4.The statement of claim was filed in April 2013. The defence was ready on 1 November 2013 when the defendant lost an application for stay of proceedings.  The dismissal of the application for stay in fact gave the defendant 28 days to file the defence.

5.The defendant’s legal opinion on Brazilian law was only available on 16 April and the amended defence pleading the law in that opinion was only ready and filed on 19 May.  I think the defendant should have started procuring the Brazilian legal opinion some time in the middle of last year and the defence should have been amended well before 18 April.

6.On the merits of this application for costs, it was the original defence that had tempted the plaintiff to start the application for summary judgment and striking out which the plaintiff seriously pursued till 19 May when the draft amended defence was served.  Now that the original defence is abandoned and substituted by an amended defence with a lot more substance.  That means the plaintiff’s efforts in preparing for the application for summary judgment and striking out have been put to waste.

7.Mr Lee for the defendant suggested that he can argue out the defendant’s opposition based on the original defence to show that there were merits in it to the extent that there should be leave to defend on the basis of that defence.  But I think whether the original defence has merits is neither here nor there.  Its abandonment shows that it was not the true defence.  I would not withhold costs from the plaintiff merely because the defendant has originally put in something arguable but is not his true defence.  The defendant is only entitled to and should only put in a true defence.  That is why there is a statement of truth at the end of that document.  This point is of importance in this case because of the wholesale amendment rather than some minor or technical amendments.

8.In the premises, I order that the defendant do pay the plaintiff the costs of the application to strike out fraud and for summary judgment.

9.I further order that the costs be assessed by me summarily.

Mr David Chen, instructed by Boase, Cohen & Collins, for the plaintiff

Mr Thomas Lee, instructed by Haldanes, for the defendant