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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Before: Hon Chung J in Chambers

Date of Last Written Submissions: 4 August 2014

Date of Decision on Wasted Costs: 4 September 2014

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D E C I S I O N  ON  W A S T E D  C O S T S

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1.By a decision handed down on 30 April 2014 (“the Apr2014 decision”), it was determined in essence the defendant was the successful party in two of the 3 matters before the judge in chambers.

2.This decision on wasted costs has its origin in the registrar’s order dated 10 January 2014 whereby (among other things) the registrar gave directions for valuation (and other) expert reports to be served.  That part of the order (among others) has been set aside by the Apr 2014 decision.

3.It turned out the parties have in fact complied with the registrar’s said directions before the Apr 2014 decision was pronounced, and costs have thereby been incurred.  The defendant now seeks an order to have those costs paid by the plaintiff (and for them to be summarily assessed if not agreed).

4.In the circumstances set out above, the only viable objection which the plaintiff can (and does) raise is that those costs were actually necessary.  The argument is summarized below.

5.The painting allegedly stolen from the plaintiff and said to have been sold to the defendant has been described as “Water Village” (called “the 2^nd Painting” and “the now disputed painting” in the Apr 2014 decision).  The defendant has been given leave to amend the defence to deny having obtained the 2^nd Painting, and now claims it only purchased “the now disputed painting”.

6.The plaintiff contends that, because of the above averments (which the plaintiff denies), there is a need to:

“. . . assist the Court in identifying the issues . . . including . . . the authenticity of [the now disputed painting] . . . ” (2^nd paragraph, plaintiff’s letter dated 4 August 2014).

Those costs are thus necessary and not wasted.

7.It is doubtful how the authenticity of the now disputed painting can be relevant to whether the defendant has acquired the 2^nd Painting.  But leaving aside that reservation, I do not think it correct to describe the expert reports as limited only to the above issue. As has been made clear in the Apr 2014 decision, the expert reports also covered the valuation of the paintings (probably for the purpose of quantum of loss) (para 29 to 33, 35 to 41 and 44 thereof), as well as to cover an alleged “custom” or “usage”.

8.Accordingly, I reject the plaintiff’s above contention as having no merit.

9.It is therefore correct to order that the costs wasted for complying with the registrar’s directions are to be paid by the plaintiff.

Hau, Lau, Li & Yeung, for the plaintiff

Kao, Lee & Yip, for the defendant