Waddington Ltd v. Chan Chun Hoo Thomas and Others

HCA 3291/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3291 OF 2003

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RULING ON COSTS

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1.I refer to my Decision handed down on 26 November 2014 (“my Decision”).

2.Paragraph 48 of my Decision reads as follows:

“48. I therefore make the following orders:

(i) Upon the undertaking to the Court by each of the Plaintiff and Chan Chun Wai Albert through the Plaintiff’s Leading Counsel that they and each of them will account to the 5^th Defendant and pay back into Court such amount of costs as actually recovered by the Plaintiff from the 1^st Defendant following actual payment by the 1^st Defendant, there be an order for interim payment to the Plaintiff in the sum of $23,000,000 from out of the sum paid into Court by the 1^st Defendant on 21 March 2014 in respect of the judgment sum and interest thereon in favour of the 5^th Defendant.

(ii) An order that the 5^th Defendant do indemnify the Plaintiff in relation to the costs of the appeal by the 1^st Defendant to the Court of Appeal against the Judgment herein handed down on 18 December 2013.

(iii) An order nisi that the costs of this application be paid by the 5^th Defendant to the Plaintiff.”

3.By a Summons issued by the plaintiff on 3 December 2014 (“the Summons”) the plaintiff asks for an order in the following terms:

“1. The order nisi as to costs made by Mr Recorder Patrick Fung, SC in the Decision handed down on 26 November 2014 be varied as follows:

“The costs of this application be paid by the 5^th Defendant forthwith to the Plaintiff, to be paid out from the sum paid into Court by the 1^st Defendant on 21 March 2014 in respect of the judgment sum and interest thereon in favour of the 5^th Defendant”; and

2.  The costs of this application be paid forthwith by the 5^th Defendant to the Plaintiff, to be paid out from the sum paid into Court by the 1^st Defendant on 21 March 2014 in respect of the judgment sum and interest thereon in favour of the 5^th Defendant.”

4.I then directed that the parties should make written submissions on the Summons and that I would decide the matter on paper.

5.The plaintiff made its Submissions dated 11 December 2014 and the 5^th defendant likewise made its Submissions dated 11 December 2014.

6.Apparently, the 5^th defendant was agreeable to an order being made in terms of the Summons.  That was communicated to the plaintiff on 10 December 2014. Nevertheless, the plaintiff still made its Submissions on 11 December 2014. That was followed by the 5^th Defendant’s Submissions.

7.In the above circumstances, I must deal with the matter on the basis that there is no consensus between the parties and I will decide on the Summons as I think fit.

8.As I understand it, the plaintiff’s contention is that it is entitled to the costs of the Interim Payment Application from the 5^th defendant and also to an order that the same be payable forthwith from out of the sum paid into court by the 1^st defendant on 21 March 2014 on an indemnity basis and without the need to go for taxation.  The plaintiff bases such contention on the fact that, in my Order dated 10 March 2014 (“the March Order”), I had already ordered that “the 5^th defendant do indemnify the plaintiff in respect of any costs incurred by the plaintiff which it will not have been able to recover from the 1^st defendant”.

9.I believe that the plaintiff has misunderstood the effect of paragraph 5 of the March Order.  Paragraph 5 of the March Order dealt only with the costs in the trial of the action.  It did not deal with the costs of the Interim Payment Application which had not even been issued when the March Order was made. Furthermore, it only dealt with the costs incurred by the plaintiff in the lis between the plaintiff and the 1^st defendant.

10.The Interim Payment Application is something completely different.  It is strictly an argument between the plaintiff and the 5^th defendant and has got nothing to do with the 1^st defendant.

11.Regarding the Interim Payment Application, I have already made an order nisi that the costs of the same be paid by the 5^th defendant to the plaintiff.  I have not said that it is on an indemnity basis and I have not ruled that it is not necessary to go for taxation.  Those costs must be taxed on a party and party basis and then paid by the 5^th defendant to the plaintiff.  If by that stage the parties agree that such payment should be satisfied from out of the fund in court, they can do it by way of a consent summons.

12.In the circumstances, I make absolute my order that the costs of the Interim Payment Application be paid by the 5^th defendant to the plaintiff.

13.Regarding the Summons itself, the plaintiff has failed to persuade me to vary my costs order nisi.  I see no reason why the plaintiff should not pay the costs of the Summons to the 5^th defendant and I so order.

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

Mr Johnny Mok SC and Mr MC Law, instructed by Reed Smith Richards Butler, for the 5^th defendant