Ng Chi Kwan, Danny Summer and Another v. Yeung Yiu Kwai and Another

HCPI 633/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 633 OF 2011

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DECISION ON COSTS

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I. INTRODUCTION

1.On 30 September 2014, I handed down judgment (“Judgment”) in favour of the 1^st plaintiff (“Ng”) against the 1^st and 2^nd defendants (“Ds”) in the sum of $106,756 (“Judgment Sum”) together with interest on the award for pain, suffering and loss of amenities at 2% pa from the date of the Writ of Summons to the date of judgment therein, and on special damages from the date of the Accident to the date of judgment at half judgment rate and thereafter at judgment rate until payment.  I dismissed the 2^nd plaintiff’s (“TPL’s”) claim against the Ds.

2.By my Judgment, I also granted a costs order nisi that the Ds do pay Ng costs of the assessment of damages (including all costs reserved, if any) to be taxed on District Court scale if not agreed, but I ordered that there be no order as to costs between TPL and the Ds (“Costs Order Nisi”).  For convenience, I adopt the abbreviations in the Judgment for the purpose of this Decision.

3.On 13 October 2014, the Ds applied by summons under Order 22 rule 23 and Order 62 rules 5(1) and 28 of the RHC for variation of the Costs Order Nisi (“Costs Summons”):

(a) interest on the Judgment Sum up to 21 October 2011 (ie the latest date on which the 1^st Sanctioned Payment paid by the Ds as referred to in paragraph 6 below could have been accepted by Ng and TPL without leave of the court) (“Date”) be payable by the Ds to Ng assessed at $2,742.77;

(b) interest on the Judgment Sum after the Date be disallowed;

(c) the Ds shall pay Ng’s costs in the present action up to the Date on party and party basis to be taxed on District Court scale if not agreed;

(d) Ng and TPL shall pay the Ds’ costs in the present action after the Date on indemnity basis to be taxed on High Court scale if not agreed save and except that costs of the Ds’ application by the Costs Summons shall be taxed if not agreed on party and party basis and on High Court scale;

(e) in relation to the claim against the Ds, TPL shall pay the Ds’ costs in the present action up to the Date on indemnity basis to be taxed on High Court scale if not agreed;

(f) interest on the Ds’ costs referred to in (d)-(e) above be paid at 3% above the judgment rate;

(g) the Judgment Sum and interest in the sum of $2,742.77 in (a) above totalling $109,498.77 do remain in court pending taxation or agreement over the parties’ costs, but (i) if the Ds’ costs payable by Ng and TPL should exceed Ng’s costs payable by the Ds, such of the Ds’ costs in excess of Ng’s costs shall first be paid out of the sum of $109,498.77 remaining in court to the Ds and the balance if any shall be paid to Ng, and (ii) if the Ds’ costs payable by Ng and TPL do not exceed Ng’s costs payable to the Ds the whole of the sum of $109,498.77 remaining in court shall be paid out to Ng;

(h) the balance of the 1^st and 2^nd Sanctioned Payments as referred to in paragraph 6 below in the sum of $420,501.23 (after deduction of the sum of $109,498.77 remaining in court) shall forthwith be released to the Ds via their solicitors, and interest accrued on the 1^st and 2^nd Sanctioned Payments as referred to in paragraph 6 below be forthwith released to the Ds via their solicitors.

4.On the same day, the Ds filed the affirmation of their solicitor Lam Chi Yeung Jimmy (“Lam Aff”) in support of the Costs Summons.  The Costs Summons came before me for hearing on 24 November 2014 (“Costs Hearing”).

II.  SANCTIONED PAYMENTS

5.On 23 September and 16 December 2011, the Ds made sanctioned payments of $400,000 and $130,000 respectively (“1^st and 2^nd Sanctioned Payments”) totalling $530,000 (“Final Total Payment”). According to two certificates by the Ds’ solicitors filed on 27 September and 19 December 2011 respectively, copies of the Notices of Sanctioned Payment were served on the solicitors for Ng and TPL on 23 September and 16 December 2011.  So the latest dates for acceptance of the 1^st Sanctioned Payment of $400,000 and the Final Total Payment of $530,000 without leave of the court fell on 21 October 2011 and 13 January 2012 respectively.  Ng and/or TPL did not accept either sum by the respective deadlines or at all.

6.According to the Notice of Sanctioned Payment dated 16 December 2011, the 2^nd Sanctioned Payment was (a) in addition to the 1^st Sanctioned Payment already paid into court on 23 September 2011 such that the total amount then offered in settlement was $530,000, and (b) part of the terms of a sanctioned offer set out in a letter dated 16 December 2011 from the Ds’ solicitors to the solicitors for Ng and TPL to the effect that if Ng and/or TPL gave notice of acceptance of such sanctioned payment they would be treated as also accepting the sanctioned offer.  According to the Lam Aff, the Ds made a sanctioned offer in the aforesaid letter dated 16 December 2011 that the Ds were to pay costs of Ng and TPL on District Court scale.

III.  PROCEEDINGS

7.On 31 August 2011, Ng and TPL commenced the present action against the Ds for damages for personal injuries suffered as a result of the Accident.  On 16 September 2011 (ie just over two weeks after the commencement of the present action), interlocutory judgment was entered by consent in Ng’s favour for damages to be assessed.  The 1^st and 2^nd Sanctioned Payments were respectively made less than one month and within four months of the commencement of the present action.  The 1^st Sanctioned Payment of $400,000 and/or the Final Total Payment of $530,000 exceeded the Judgment Sum plus interest. 

8.In contra-distinction to Ng’s claim tried before me (which was for assessment of damages), the proceedings between TPL and the Ds before me were a full trial on both liability and quantum.  By the Judgment, I dismissed Ng’s and TPL’s claims for (a) wasted pre‑cancellation expenses for the HK Concert, (b) post-cancellation expenses for the HK Concert, (c) loss of chance in advancement of career and/or loss of opportunity to enhance reputation, and (d) loss of performance fee for the US Concerts.

IV.  ISSUES

9.There is no dispute Ng and TPL failed to obtain a judgment better than the 1^st Sanctioned Payment and/or the Final Total Payment. 

10.Mr Lam, solicitor for the Ds, and Ms Li, counsel for Ng and TPL, confirmed that:

(a) Ng and TPL conceded and agreed to the reliefs sought in paragraph 4(a)-(c) and (f) above;

(b) the parties agreed there would be no order as to costs between Ng and TPL in respect of the reliefs in paragraph 4(d)-(e) above;

(c) the parties agreed Ng would pay the Ds’ costs in the assessment of damages as between them and Ng after the Date in respect of the relief sought in paragraph 4(d) above on indemnity basis with certificate for counsel to be taxed if not agreed on High Court scale;

(d) interest accrued on the 1^st and 2^nd Sanctioned Payments be forthwith released to the Ds via their solicitors. 

11.This means the only remaining issues were (a) whether Ng should bear the Ds’ costs of the Costs Summons on party and party basis to be taxed if not agreed on High Court scale, and (b) whether the court should grant the reliefs sought in paragraph 4(g)-(h) above under the Costs Summons.

V.  RELEASE OF SANCTIONED PAYMENT?

12.The Lam Aff claimed that since the 1^st and 2^nd Sanctioned Payments were made at the early stages of the present action, the Ds’ costs payable by Ng and TPL were expected to exceed Ng’s costs payable by the Ds.  On such basis, the Ds sought the reliefs in paragraph 4(g)-(h) above. On the other hand, Ms Li submitted that the Judgment Sum and the interest thereon now agreed between the parties in the total sum of $109,498.77 should be paid out from the 1^st and 2^nd Sanctioned Payments and released to Ng. 

13.Mr Lam argued that the Ds’ costs payable by Ng after the Date (assessed on indemnity basis and on High Court scale) would almost certainly exceed Ng’s costs payable by the Ds up to the Date (assessed on party and party basis and on District Court scale), so the sum of $109,498.77 should not be released to Ng.  Mr Ng submitted that since the present action commenced on 31 August 2011 just shortly before the 1^st and 2^nd Sanctioned Payments were made and only concluded upon the Judgment being handed down on 30 September 2014, it must be a matter of common sense that the bulk of the Ds’ legal costs (including counsel’s fees for attending the three-day assessment of damages before me) must have been incurred after the Date, and Ng had to pay such costs to be taxed on indemnity basis if not agreed on High Court scale.  On such basis, Mr Lam contended it was highly probable the Ds’ entitlement to taxed costs with interest thereon would exceed (a) Ng’s entitlement to his costs on party and party basis to be taxed if not agreed on District Court scale and (b) the sum of $109,498.77.  It was therefore suggested there was cogent basis for the relief sought in paragraph 4(g) above.

14.Mr Lam also raised the spectre of sinister connotations as a result of Ng’s insistence on immediate payment out and release to him of the sum of $109,498.77. Mr Lam suggested that such insistence raised a suspicion that Ng intended to dishonour the adverse costs order against him. 

15.In my view, there is insufficient evidence for me to draw any such conclusion.  One must not forget that the Judgment granted the Judgment Sum and interest thereon in favour of Ng, and he is therefore entitled to payment of such sum and interest.  Without more, the fact that Ng asked for release of the sum of $109,498.77 out of the 1^st and 2^nd Sanctioned Payments (a sum to which he is entitled) to him does not necessarily give rise to an inference that he is going to dishonour any adverse costs order against him.  There is no evidence before me to show Ng is or will be financially unable to pay any taxed costs payable to the Ds and/or to suggest he is going to evade payment of costs.

16.Then, can the Ds insist on retaining/holding in court the sum of $109,498.77 out of the 1^st and 2^nd Sanctioned Payments pending taxation of Ng’s and the Ds’ costs?

17.Order 22A rule 1(1) of the Rules of the High Court (“RHC”) provides that:

“Subject to Order 22, rule 17, any money paid into court in an action (whether or not in accordance with Order 22) may not be paid out except in pursuance of an order of the Court which may be made at any time before, at or after the trial or hearing of the action.”

18.In Powell v Vickers, Sons & Maxim, Limited,[1] the plaintiff claimed damages for the defendants’ refusal to accept certain goods, and the defendants counterclaimed for damages in respect of some goods (but such counterclaim was withdrawn at trial).  The case was referred to a special referee, who found in favour of the plaintiff and awarded a sum of

money to the plaintiff as damages, which sum was less than the amount the defendants had paid into court.  The master entered judgment for the defendants with costs of action, reference and award, “and directed that the plaintiff should have the costs of the issues decided in his favour, and further directed that the money in Court should remain there until further order”.[2] On appeal, the costs order was modified so the plaintiff had the costs of the action up to the time of payment into court.

19.Collins MR referred to a rule of court similar to Order 22A rule 1(1) of the RHC which provided that the money paid into court was not to be paid out except in pursuance to an order of the court.  He went on to say as follows:

“…… It would appear that the Master was entitled to hold the money in Court if there was any adequate reason for so doing to overweigh the presumption that it should be distributed. In this case it has been put to us that there are conflicting claims for costs, and that there was no evidence before the Master as to which, when both taxed, would out-top the other. It is also pointed out that to allow the money of the plaintiff to remain in Court would be to give to the defendants a security for costs to which they are not entitled. The onus is on the defendants to give some good reason why the money should remain in court, and that has not been met. For these reasons I think that the order of the Master cannot be supported and that this appeal should be allowed.”

20.In Darcy Grant Dmetrichuk v Tung Wah Group of Hospitals Wong Fut Nam College,[3] DHCJ Wright entered judgment in favour of the plaintiff in a personal injuries action in a sum with interest that was less than the sum the defendant paid into court shortly before trial.  The learned judge granted a costs order nisi that the defendant should pay the plaintiff’s costs, but the defendant applied for variation thereof together with an order that the moneys it had paid into court be held as security for its costs.  Whilst the learned judge acceded to the defendant’s request for variation of the costs order, he ordered that the amount due to the plaintiff be paid out of court forthwith with the balance to be repaid to the defendant. 

21.On the issue of whether the moneys that the defendant had paid into court should be retained until such time as the costs due to it had been taxed so that such costs be paid from those moneys, the learned judge recognised that an order to such effect was effectively a form of security for costs.[4] He cited Powell “in which it was made clear that an order of this nature is exceptional and should only be granted where a defendant is able to discharge an onus to give some good reason why the money should remain in court”.[5] It was held there was no justification for granting the relief sought.

22.I agree with Mr Lam that the facts of Darcy Grant Dmetrichuk are a far cry from the present case when (a) the payment into court in that case was made shortly before trial and beat the judgment sum by a small margin, but (b) here the 1^st and 2^nd Sanctioned Payments were made early in the proceedings and beat the Judgment Sum and agreed interest by a wide margin.  But the significance of Darcy Grant Dmetrichuk is that it adopted the principles in Powell.

23.In Wear Mr Apparel LLC v Lam Na also known as Lin Na, in compliance with a condition for stay of execution of a judgment granted in favour of the plaintiff that was pending appeal and by consent, the defendant paid into court the judgment sum of $800,000.  The Court of Appeal dismissed the appeal, and the plaintiff applied for leave for payment out of the sum paid in by the defendant.  A few days before the hearing of such application, the Court of Appeal handed down reasons for their decision.  The defendant wanted an adjournment on the basis that it intended to appeal against the Court of Appeal’s decision although no such application had been taken out at the time of the hearing.

24.Au-Yeung J accepted that the defendant had acted promptly, but noted that effectively its request for an adjournment was tantamount to an application for stay of execution.  The learned judge doubted whether she had jurisdiction to consider a stay, but even if she had such jurisdiction she was of the view that the defendant had not even begun to show merits of the intended appeal (when the plaintiff had won in two levels of court).  The learned judge held that since “the defendant failed to show any good reason for granting a stay” and “[taking] all circumstances into account, there is nothing before this court that it can legitimately take into account under Order 22A to defer the making of an order for payment out”.

25.Obviously, the factual circumstances of Wear Mr Apparel LLC are quite different from the present case since the former deals with a stay of execution and the latter deals with release of monies paid in as sanctioned payments.  However, Wear Mr Apparel LLC illustrates a running theme that threads through Powell and Darcy Grant Dmetrichuk that some good reason must be shown that justifies the request for retention of moneys in court to be used as “security” when the applicant for release is in principle entitled to such moneys.

26.In MGA Entertainment Inc formerly known as ABC International Traders, Inc doing business as MGA Entertainment v Toy and Trends (Hong Kong) Limited & ors,[6] the defendants were awarded US$7.25 million in damages following an enquiry as to damages upon the plaintiff’s cross-undertaking following discharge of the interlocutory injunction in the favour of the plaintiff and discontinuance of their claim against the defendants.  A stay was granted on condition that the plaintiff made payment into court of US$5 million.  The Court of Appeal dismissed the plaintiff’s appeal, but the Court of Final Appeal allowed the appeal and awarded US$450,000 to the defendants, which sum together with interest amounted to US$489,954.70.  There was no dispute that the sum of US$4,510,045.30 should be paid out to the plaintiff.  The question was whether the balance of US$489,954.70 should be held in court pending the taxation of various bills of the parties or paid out to the defendants.

27.The plaintiff in that case noted that although the Court of Final Appeal awarded them 75% of their costs of the enquiry as to damages in the Court of First Instance, the plaintiff who succeeded on appeal was awarded costs of the appeal in the Court of Appeal and the Court of Final Appeal, and further argued that upon taxation of the bills of the parties the defendants would be the parties who would have to pay “because their costs and the amount of loss assessed by [the Court of Final Appeal] would not be enough to offset the plaintiff’s costs.  It was worried by the plaintiff the defendants would not pay the plaintiff in the end”.[7]

28.The learned Master noted the purpose of the payment of US$5 million into court was a condition of the stay of execution, and hence in the normal course of events such sum should be utilised to satisfy any judgment in favour of the defendants. Since the Court of Final Appeal had given judgment, the defendants were prima facie entitled to an order under Order 22A rule 1(1) of the RHC for the release of the sum of US$489,954.70 to them.  Although the plaintiff had provided its bill of costs (and the defendants had not answered a request for their bill of costs), the learned Master said:

“27. …… it is not the function of the court to tax the bills now and the court should not embark on the realms of speculation. In my view, it is extremely dangerous for the court to act upon the bills put forward by the plaintiff because this court is simply not in a position to assess how much costs would be allowed upon taxation. Any proposed broad-brush assessment cannot be anything but speculation. I do not consider it appropriate for this decision to be made on the basis of speculation.

28. Furthermore, even if the plaintiff’s costs may be roughly ascertained, those of the defendants cannot. There is thus a missing element in the formula, and as a result there is no way by which the court may tell or make any informed guess as to the possible net position as far as costs, damages and interest are concerned.

29. Without this very important foundation, the plaintiff’s application/ opposition is a non-starter.”

29.Again, although MGA Entertainment Inc dealt with the question of payment out of moneys paid into court as a condition for stay of execution, it sheds light on the operation of Order 22A rule 1(1) of the RHC and on the court’s approach when faced with arguments based on the net position on costs and damages between two parties.

30.I agree with the learned Master that under Order 22A rule 1(1) of the RHC, the court has an unfettered discretion which should be exercised judicially so as to achieve justice between the parties.  Such discretion necessarily turns on the particular facts and circumstances of each case, and the case authorities do not lay down binding precedents. 

31.In the present case, since the 1^st and 2^nd Sanctioned Payments were paid into court for the purpose of disposing of Ng’s and TPL’s claim, so it is logical to expect the Judgment Sum and interest thereon in their favour to be satisfied by the release of such sums from the 1^st and 2^nd Sanctioned Payments.  In short, Ng is prima facie entitled to the release of the sum of $109,498.77 out of the 1^st and 2^nd Sanctioned Payments in their favour.  This is plainly a relevant consideration in the exercise of discretion under Order 22A rule 1(1) of the RHC.

32.Further, the Ds’ request for the sum of $109,498.77 out of the 1^st and 2^nd Sanctioned Payments to be kept in court pending taxation of the parties’ respective costs is a de facto stay of execution of the Judgment Sum and agreed interest, and a security for costs awarded to the Ds pending taxation.  In my view, it is for the Ds to demonstrate good reasons and to justify why the court should grant such order to enable them to enjoy such security.

33.Here, although there is some disparity in the respective orders for costs in favour of Ng and the Ds, which arguably suggests that the quantum of the costs awarded in favour of the Ds may exceed those awarded in favour of Ng, the Ds did not place any estimate of costs before this court.  Indeed, when asked as to whether counsel’s fee note for rendering advice and attending trial (being discrete disbursement sums) could be provided for consideration, Mr Lam was unable to produce the same at the Costs Hearing. In my view, it is inappropriate to engage in costs assessment without any evidence/estimate of the Ds’ costs or any estimate of Ng’s costs placed before the court.  I am not persuaded there is any sufficient basis in the present case for me to exercise the discretion in favour of the Ds to retain the sum of $109,498.77 in court. 

34.In respect of the reliefs sought in paragraph 4(g)-(h) above, the Judgment Sum and interest in the sum of $2,742.77 totalling $109,498.77 shall be released and paid out of court to Ng’s solicitors in settlement of the Judgment sum and agreed interest, and the balance of the 1^st and 2^nd Sanctioned Payments in the sum of $420,501.23 shall forthwith be released to the Ds via their solicitors.

35.In coming to this conclusion, it does not mean that in all cases where it is necessary to work out the net position on costs and damages the defendant will be unable to ask for retention of all or part of the sanctioned payment it had made pending the taxation of costs.  Much will depend on the reasons and evidence put forward by the defendant.

VI.  COSTS OF THE COSTS SUMMONS

36.Under Order 22 rule 23 of the RHC, (a) interest payable on the Judgment Sum after the Date (being the latest date for acceptance of the 1^st Sanctioned Payment without leave of the court) should be disallowed, and (b) Ng and TPL should pay the Ds’ costs of the present action after the Date on an indemnity basis as well as enhanced interest thereon not exceeding 10% above the judgment rate.

37.In principle, to enjoy the benefits of such statutory consequences, the Ds had to apply within the prescribed period by way of the Costs Summons to vary the Costs Order Nisi, and to support it with an affirmation that explained the 1^st and 2^nd Sanctioned Payments. 

38.However, Ms Li submitted that Order 22 of the RHC would not affect the court’s residual discretion as to costs under section 52A of the High Court Ordinance Cap 4 which provides that, subject to the provisions of rules of court, the costs of, and incidental to, all civil proceedings in the High Court are in the court’s discretion.

39.Ms Li argued that the Ds should not be entitled to costs of the Costs Summons because of their unreasonable behaviour as evident from a series of correspondence between the parties’ solicitors between 7 and 16 October 2014, and she urged this court to grant no order as to costs of the application.

40.As explained above, the Judgment was handed down on 30 September 2014.  On 7 October 2014 (Tuesday), the Ds’ solicitors wrote to the solicitors for Ng and TPL to set out their intended application to vary the Costs Order Nisi.  On 9 October 2014 (Thursday), the solicitors for Ng and TPL reverted to say they were then taking instructions from their clients and asked for seven days’ extension of time to reply.  On the same day, the Ds’ solicitors replied to say they had no objection to the time extension, but pointed out that the Ds were bound to apply for variation of the Costs Order Nisi on or before 14 October 2014.  They went on to say that since Ng and TPL would not be able to reply on/before such deadline, the Ds would take out a summons without delay for variation of the Costs Order Nisi and attempt to list it as soon as possible after 16 October 2014 (ie seven days from 9 October 2014). 

41.On 10 October 2014 (Friday) at 6:06pm, the solicitors for Ng and TPL replied by fax to accept the proposed variation of the Costs Order Nisi save that (a) TPL should not be ordered to pay the Ds’ costs because the Costs Order Nisi provided that there be no order as to costs between TPL and the Ds, and (b) Ng should obtain interest accrued on the 1^st and 2^nd Sanctioned Payments to the extent of the sum of $109,498.77.  After the intervening weekend, the Ds’ solicitors received the hard copy of such letter on 13 October 2014 (Monday) at 3:02pm.

42.On 13 October 2014 (Monday), the Ds issued the Costs Summons and filed the Lam Aff.  According to the letter from the Ds’ solicitors to the solicitors for Ng and TPL on 16 October 2014, the Costs Summons and the Lam Aff were filed before the Ds’ solicitors read the letter from the solicitors for Ng and TPL dated 10 October 2014.  By such letter, the solicitors for Ng and TPL confirmed they had instructions to agree to TPL’s proposal that there be no order as to costs between TPL and the Ds, but the Ds still insisted they were entitled to all interest accrued on the 1^st and 2^nd Sanctioned Payments.

43.Ms Li submitted that the Ds’ solicitors should have reverted to the letter by the solicitors for Ng and TPL dated 10 October 2014 before taking out the Costs Summons, and in any event the amount of interest in dispute is relatively small, hence the Ds had unreasonably incurred costs which should not be borne by Ng.

44.In my view, the Ds were entitled to all the reliefs sought in the Costs Summons save for those in paragraph 4(g)-(h) above in relation to the retention of the sum of $109,498.77 in court.  Hence, the Costs Summons is in principle necessary for the Ds to enjoy the benefits of such reliefs unless Ng made timely concessions.  There is no obligation for the Ds to wait for a positive response from Ng until the last minute before the deadline to seek such variation.  Bearing in mind that the deadline for issuing the Costs Summons was looming close, and the solicitors for Ng and TPL indicated they required time to reply, I am unable to say that the Ds’ conduct in waiting until the day before the deadline to issue the Costs Summons was unreasonable.  Even if the Ds’ solicitors had read the letter dated 10 October 2014 by the solicitors for Ng and TPL, prudence would dictate that the Ds should issue the Costs Summons in good time before the deadline.  It will be noted the outstanding issue on interest was not resolved until Ms Li lodged her written submissions for the Costs Hearing.  Although the interest sum is not large, I see no justifiable reason for the Ds to give up such interest sum by holding back and not issuing the Costs Summons on or before the deadline.  In any event, even though the parties came to terms in respect of most of the reliefs the Ds sought, there is no reason why the Ds should not be entitled to costs in relation to requesting and obtaining such reliefs.

45.But that said, the Ds failed in their application for the reliefs in paragraph 4(g)-(h) above in respect of the retention of the sum of $109,498.77 in court, and such application has taken up time at the Costs Hearing.  There is arguable basis that costs should follow event in relation to the application for such reliefs.  In such circumstances, taking all of the above matters into account, the appropriate order is no order as to costs of and occasioned by the Costs Summons.

VII.  CONCLUSION

46.In the circumstances, the Costs Order Nisi is varied and made absolute as follows:

(a) interest on the Judgment Sum up to the Date be payable by the Ds to Ng and be assessed at $2,742.77;

(b) interest on the Judgment Sum after the Date be disallowed;

(c) the Ds shall pay Ng’s costs in the present action up to the Date (including all costs reserved if any) on a party and party basis to be taxed if not agreed on District Court scale;

(d) save and except for (i) below, Ng shall pay the Ds’ costs in the present action as between Ng and the Ds after the Date (including all costs reserved if any) on indemnity basis to be taxed if not agreed on High Court scale;

(e) there be no order as to costs in the present action between TPL and the Ds;

(f) interest on the Ds’ costs referred to in (d) above be paid at 3% above the judgment rate;

(g) the Judgment Sum and interest in the sum of $2,742.77 in (a) above totalling $109,498.77 out of the 1^st and 2^nd Sanctioned Payments shall forthwith be released and paid out to Ng via his solicitors;

(h) the balance of the 1^st and 2^nd Sanctioned Payments in the sum of $420,501.23 shall forthwith be released to the Ds via their solicitors, and interest accrued on the 1^st and 2^nd Sanctioned Payments up to the date of the Judgment be forthwith released to the Ds via their solicitors;

(i) there be no order as to costs of and occasioned by the Costs Summons.

Ms Miranda Li, instructed by Henry Wan & Yeung, for the 1^st and 2^nd plaintiffs

Mr Jimmy Lam, of Y T Chan & Co, for the 1^st and 2^nd defendants