Wong Tat Lun Eddie and Others v. Wong Chi Ho Jimmy and Others

HCMP 2391/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2391 OF 2013

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BETWEEN

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D E C I S I O N (2)
(Leave to Appeal on Costs)
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1.I have handed down a Decision on 16 April 2015 in which I have granted leave to appeal against the Costs Order on the first ground of appeal in relation to the first part of the order (“Decision (1)”). I indicated that I needed not consider the other two of the three ground grounds put forward on behalf of D1.

2.After the handing down Decision (1), Ps’ solicitors Messrs Lam and Lai wrote on 20 April 2015 seeking clarification on whether leave to appeal was granted in respect of the 1^st Ground of Appeal only, or whether general leave to appeal was granted, permitting D1 to rely upon the 2^nd and 3^rd Grounds of appeal.

3.For clarification, I grant general leave to D1 to appeal against the Costs Order on all the Grounds.  My brief reasons in relation to the 2^nd Ground and the 3^rd Ground are set out below.

4.To recap, there were 2 parts of the Costs Order:  namely the period up to D1’s 2^nd affirmation, and the period thereafter, as follows:

(i) D1 to pay Ps’ costs up to D1’s 2^nd affirmation, to be taxed on a party and party basis if not agreed with certificate for two Counsel; and

(ii) The costs of Ps and D1 for the period after D1’s 2^nd affirmation, including the costs of the Leave Application[1], shall be paid out of the Deceased’s Estate, to be taxed on a solicitor and client basis if not agreed, with certificate for two Counsel.

5.There were three Grounds of Appeal put forward on behalf of D1, namely:

(i) This court erred in principle in making an extreme and exceptional order of ordering D1 to pay the unsuccessful Ps’ costs.  This ground was in relation to the first part of the Costs Order;

(ii) The court had failed to take any or any sufficient account of Order 62 rule 6(2);

(iii) This court erred in law in finding that the continuation of the Removal Application fell within the second class of cases referred to in Re Buckton, and should, as a matter of law found that it fell within the third class.

6.The 2^nd Ground was also in relation to the first part of the Costs Order. Order 62 rule 6(2) was not cited to this court in the parties’ respective written submissions on costs. What Mr Whitehead  SC was in effect submitting was that if D1 could not recover that part of the costs prior to his 2^nd affirmation such costs should be paid out of the Deceased’s Estate.  One of the cases P had relied on was the Saffidi case in Western Australia, which was a case in relation to an application to remove the trustee and the costs thereof.  Although in Saffidi CA (Costs) ,  the Court of Appeal of the Supreme Court of Western Australia had referred to the Australian  equivalent of Order 62 rule 6(2), objectively speaking, it could reasonably be argued by D1  that this court when making the  first part of the Costs Order did not take sufficient account of those provisions, and I am of the view that such argument has a reasonable prospect of success.

7.The 3^rd Ground was related to the second part of the Costs Order.  This part of the Costs Order also included the Leave Application which Ps in fact succeeded, but at the end of the hearing on 23 June 2014, there was no opposition to costs be in the cause.  Mr Whitehead had submitted that the categories of dispute in Re Buckton were refined in Alsop Wilkinson v Neary  [1996] 1 WLR 1220 and argued that the Removal Application  should in fact fell within the third class of disputes referred to in  Re Buckton .  The Alsop case was not referred to this court in the parties’ respective written submissions on costs.  Although each case depends on its own facts, having considered the submissions, I am prepared to grant leave to appeal on this ground．

8.Lastly, I would like to thank Counsel for their submissions and assistance to the court.

Mr Paul Lam SC and Mr Jonathan Wong, instructed by C K Mok & Co, for the 1^st, 2^nd and 3^rd plaintiffs

Mr Robert Whitehead SC and Mr Richard Yip, instructed by Lam and Lai for the 1^st defendant

[1] As defined in the Decision on Costs, 16.02.15