West Coast International Trading Ltd t/a Dandelion Fine Arts v. Chelesa Art Company Ltd

HCA 1636/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1636 OF 2010

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D E C I S I O N

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1.The relevant part of the costs order made in the decision handed down on 30 April 2014 reads:

“… two-thirds of the costs of this appeal (and the hearing before the registrar) be paid by the plaintiff to the defendant forthwith … ” (para 48 thereof).

The above is expressed in plain and simple language.

2.Court orders which award a proportion of the costs to one or more of the litigating parties are common; examples of such orders have been mentioned in Hong Kong Civil Procedure 2014, Vol 1, especially at p 1125.

3.The appeals from the registrar to the judge which brought about the above costs order involved 3 matters:

(a) the defendant’s application for leave to further amend its defence;

(b) the defendant’s application for particulars of the interrogatories earlier served on the plaintiff;

(c) the plaintiff’s application for expert/valuation directions.

In short, the defendant has been successful in respect of two of the 3 above matters.

4.With the above (in particular para 1 and 2 above) in mind, one would have thought such an order should not give rise to difficulties of interpretation; unfortunately it apparently did for the plaintiff.  In its skeleton submissions lodged for the present purpose, the plaintiff somehow read the above costs order as entitling it to one-third of the costs of the appeals: para 5(1) and 7 to 11 thereof (with the net result that the defendant would end up with only one-third of the costs).

5.The meaning of the costs order contended for by the plaintiff has no merit.  The costs order never awarded any costs in the plaintiff’s favour.  Insofar as the plaintiff is seeking a variation of the order (which it is not seeking (see para 11, plaintiff’s skeleton submissions)), it is refused on the ground that this will bring about an overall result which does not match fairly the extent of the defendant’s success in the appeals.

6.The next complaint of the plaintiff is that the defendant has lodged with court 6 sets of statement of costs.  The plaintiff’s letter of 13 May 2014 pedantically says:

“[pursuant] to paragraph 49 [of the 30 April 2014 decision], the Defendant should lodge … and serve a statement of costs. However, we note that the Defendant has lodged six statement[s] of costs … ”.

The defendant’s statements of costs are:

(1) 2 sets for its application for leave to further amend the defence (one for the registrar hearing and another for the appeal hearing);

(2) 2 sets of its application for particulars of interrogatories (one for the registrar hearing and another for the appeal hearing);

(3) 2 sets for the plaintiff’s application for expert/valuation directions (one for the registrar hearing and another for the appeal hearing).

It is obvious the defendant intends to give a break down of the overall costs incurred into the different aspects covered by each set of the statements of costs.  Such an approach cannot be faulted as a matter of principle, and should in fact be helpful to both the paying party and the court when assessing the reasonableness of the costs charged by the defendant.  The plaintiff has not complained that it had been confused by the 6 sets of statement of costs.

7.Insofar as there should be any complaint that parts of the defendant’s costs have been partially inflated, the complaint should properly be raised (and considered) in the context of the summary assessment itself.  Accordingly, there is no merit in this complaint either.

8.Unknown to the court when the 30 April 2014 decision was handed down (which (among other things) set aside the registrar’s directions for expert/valuation), the parties have complied with the registrar’s directions, and costs have been incurred as a result.  The defendant has earlier included those “wasted” costs in its statements of costs.  However, it readily accepted during the hearing that those costs should more properly be the subject-matter of a separate costs order.  The defendant has helpfully in its letter of 16 May 2014 set out the total amount of such wasted costs ($71,370). Nothing further came out of this aspect during the hearing.

9.It is accepted by the parties the other points mentioned in the parties’ respective skeleton submissions are related to the quantum of costs.  They are therefore more appropriately points to be raised, and considered, as part of the summary assessment of costs.  They will thus not be elaborated here.

10.As regards the costs of this hearing, the parties do not dispute that the summary assessment of costs itself should not attract further costs.  The only further costs which require the court’s determination are those concerning matters which the court needs to consider in this decision (see para 1 to 7 above).

11.Because the defendant turns out to be the substantial successful party herein in relation to those matters, the costs of this hearing should be awarded in its favour (to be paid forthwith).

12.For the purpose of the summary assessment of costs (if those costs cannot be agreed):

(a) the defendant be at liberty to lodge with court and serve a statement of costs within 7 days from today;

(b) the plaintiff be at liberty to lodge with court and serve a statement of objections within 7 days thereafter.

Mr Clark Wang, instructed by Hau, Lau, Li & Yeung, for the plaintiff

Mr Justin Lam, instructed by Kao, Lee & Yip, for the defendant