Chan Shun Kei t/a Chan Shun Kei Construction Works v. Hong Kong Construction (Hong Kong) Ltd (Formerly Known As Hong Kong Construction (Holdings) Ltd)
Read the full judgment text of HCCT 2/2011 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 21 August 2014 before Hon Mimmie Chan J.
Procedure — Costs orders — Order nisi — Variation of costs order under O 42 r 5B RHC — Sanctioned offer and indemnity costs — Court clarified that costs order pronounced orally but sealed later constitutes an order nisi. Defendant sought costs on indemnity basis following a sanctioned offer but failed to apply for variation within the 14-day period. Instead, the defendant issued summons to amend and appeal without proper variation application. Plaintiff consented to amendment after summons issued. Court held variation could be applied for within 14 days and correspondence or appeals were improper substitutes. Costs application was granted to amend the order to clarify its nature as order nisi. Costs of application to amend were to be borne by the parties themselves except the defendant had to pay costs from the date plaintiff consented, reflecting defendant’s unnecessary correspondence conduct. Plaintiff’s own costs to be taxed under the Legal Aid Regulations. The decision emphasizes correct procedure for varying costs orders and consequences of failure to apply timely for variation. Orders included amendment of costs order and cost allocation to reflect responsible conduct of parties.
Legal issues: Nature and variation of costs order nisi · Costs of application to amend the costs Order
Outcome: Order nisi as to costs confirmed; defendant’s application to amend granted; each party bears own costs of application save defendant to pay costs from 18 July 2014
Cited by 1 case · Cites 1 case
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HCCT 2/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTRUCTION AND ARBITRATION PROCEEDINGS NO 2 OF 2011 ____________
Before: Hon Mimmie Chan J in Chambers (Open to Public) Date of Hearing: 21 August 2014 Date of Decision: 21 August 2014 _____________ D E C I S I O N _____________ 1.Where a judgment or order is pronounced at the conclusion of the hearing, but the reasons are given in writing at a later date, or the judgment or order is recorded in writing and handed down at a later date, the order as to costs in the written decision is by its nature an order nisi under O 42 r 5B RHC. Unless an application is made to vary that order, it becomes absolute 14 days after the pronouncement of the decision (O 42 r 5B (6)). 2.An application to vary a costs order nisi made under O 42 r 5B (6) should be made by summons (32/6/9A Hong Kong Civil Procedure). 3.In this case, my order and reasons were pronounced orally at the conclusion of the hearing on 3 July 2014. The order was to dismiss the plaintiff’s application for leave to appeal, with costs (hereinafter called “Order”). After the Order was pronounced orally in court, the defendant indicated that it sought costs on an indemnity basis by virtue of a sanctioned offer. I indicated that a separate application for variation can be made. 4.The plaintiff’s solicitors drew up the Order, which was sealed. The defendant’s solicitors complained that the sealed Order provides simply for the costs of the application “be to the defendant”. They now apply to the court by summons issued on 17 July 2014 to amend the sealed Order to read that “there be an order nisi that the costs of the application be to the defendant”. 5.Although the Order is sealed, it does not alter the fact that it was an order nisi in nature as and when it was pronounced. No variation of its nature is sought. 6.Whether or not the Order is amended, if the basis on which the defendant seeks payment of costs on an indemnity basis is that it had made a sanctioned offer which has the consequences provided for in Order 22 r 23 (as counsel so informed the court at the conclusion of the hearing on 3 July 2014), then the defendant could have made the application for such costs, even if the Order is sealed. 7.The parties acknowledge that the court had clearly informed the parties at the conclusion of the hearing on 3 July 2014 that the costs order can be varied on proper application being made. There is no doubt that the costs order was an order nisi. 8.In my view, the defendant could have applied for variation of the Order, even without amendment of the Order - provided that it does so within the 14 days period specified in O 42 r 5B (6) for the Order to become absolute, or otherwise it seeks an extension from the court so to do. Surprisingly, and notwithstanding the stance indicated by the defendant from 3 July 2014 until now, that it seeks costs on an indemnity basis, no application for variation was ever made, whether under O 42 r 5B, or O 22 r 23. Instead, it chose to engage in correspondence on the necessity to amend the Order or to appeal against the Order. I would add that any amendment of the costs Order dates back to 3 July 2014, and does not affect the commencement of the time for the order nisi to become absolute, from the pronouncement of the decision. 9.On 22 July 2014, I already directed, pursuant to correspondence from the parties’ solicitors, as follows :
10.In fact, on 18 July 2014, the very next day after the defendant issued its summons for leave to amend and leave to appeal against the Order, the plaintiff indicated that it was prepared to consent to an order for amendment, as sought by the defendant. 11.In my view, it is clear that the defendant’s solicitors have engaged in unnecessary correspondence from and after 18 July 2014, if not before. 12.I will grant leave to amend the Order to provide, for avoidance of any doubt, that the costs order made on 3 July 2014 is an order nisi. However, the order for costs that I make is that each party should bear its own costs of and occasioned by the application to amend, save that the defendant should pay all costs incurred from 18 July 2014, including the costs of today’s hearing. I see no reason why the plaintiff should pay costs of an unnecessary course of action. 13.The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.
Mr Eric Chung, instructed by Robin Bridge & John Liu (assigned by the Director of Legal Aid), for the plaintiff Mr Geoffrey Chan, of Mayer Brown JSM, for the defendant | |||||||||||||||||
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