Ng Hung Ngan v. Yeung Fook Mui

HCA 2296/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2296 OF 2013

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D E C I S I O N

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1.On 12 August 2014, I dismissed the plaintiff’s application for summary judgment, with costs to the defendants (“Decision”). The parties now apply to vary such costs order. The defendants seek an order for the costs to be paid by the plaintiff to the defendants forthwith, whereas the plaintiff seeks an order that the costs should be in the cause, or to the defendants “in any event”.

2.The defendants have referred to Order 14 rule 7 as their basis for seeking their costs to be paid forthwith.  Under this rule, the court may dismiss a plaintiff’s application for summary judgment and may require the costs to be paid by the plaintiff forthwith, if the plaintiff makes an application where the case is not within Order 14, or if it appears to the court “that the plaintiff knew that the defendant relied on the contention which would entitle him to unconditional leave to defend”.

3.The plaintiff’s claim against the defendants in this action is for a declaration that the defendants’ title to the Land (as defined in the Statement of Claim) is extinguished, and that the plaintiff has acquired a possessory title by his alleged adverse possession of the Land.  The plaintiff maintains that its claim is not one which has been excluded under Order 14 rule 1(2), and that there is accordingly no basis to make a costs order under rule 7 (1).

4.It has to be borne in mind that summary judgment is reserved for cases in which it can be shown that the defendant has no defence to the claim included in the writ.  The plaintiff emphasized the fact that the defendants in this case only filed a Defence containing bare denials and non-admissions, with no detailed pleading of facts which establish a genuine defence to the claims made.  It was argued that the plaintiff was not made aware of the defence or issues on which the defendants rely at the time when the application for summary judgment was made, such that an order for costs against the plaintiff is not appropriate.

5.I have already explained in the Decision the parts of the Statement of Claim which give rise to triable issues, and that it is not necessary for the defendants to plead to law, such as the effect of the plaintiff’s possession as “allowed” by Tang Yau Fok, and as a licensee of the Land.  It is also for the plaintiff to establish, on the disputed facts, the necessary animus possedendi, to possess the Land with the intention to exclude the entire world including the registered owner of the Land.  On the pleadings, the case is not one which is appropriate for summary judgment, and particularly since the Civil Justice Reform, plaintiffs should be discouraged from indiscriminate use of the Order 14 procedure, as it will only lead to unnecessary delay and costs in the conduct of the action. 

6.It is also to be borne in mind that the court’s power to make an order as to costs under Order 14 rule 7 (1) is without prejudice to its general discretion as to costs under Order 62 rule 3.

7.Even if the Defence in this case does not clearly or adequately set out the issues for trial, by the time of the filing of the defendants’ affirmation on 1 March 2014 after the issue of the Order 14 Summons, the plaintiff should have been made aware of the triable issues and the necessity for trial.  Proceeding with the application for summary judgment justifies an order for costs.

8.In my view, the order that the plaintiff should bear the costs of the application for summary judgment should not be varied. 

9.As to whether such costs should be paid by the plaintiff forthwith, I agree with the observations made by Sakhrani J in Hui Yin Sang v Tsoi Ping Kwan HCA 392/2008, 14 July 2009, that post Civil Justice Reform, parties should be discouraged from unnecessarily maintaining or resisting interlocutory applications by making immediate orders for the payment of costs.  The application for summary judgment in this case is self-contained, the action is at an early stage, and it will obviously take some time for the trial of the action to take place.  To make an order for payment of costs to the defendants in any event is to deprive them of the benefit of the costs order for a substantial period of time. 

10.I will accordingly vary my costs order to provide for the costs of the Order 14 Summons to be paid by the plaintiff to the defendants forthwith and to be taxed forthwith, as sought.  The order includes the costs of the defendants’ application for variation of the costs order, their costs in resisting the plaintiff’s own application for variation, and the costs of the consent summons filed on 3 September 2014.

Mr Valentine Yim and Ms Vivian Lam, instructed by Tang, Wong & Cheung, for the plaintiff

Mr Adrian Leung, instructed by Wong, Hui & Co, for the defendants