Cheung Kwong Yuen v. Sun Huifang

HCMP 3306/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3306 OF 2014

(ON AN INTENDED APPEAL FROM LDPD NO. 1740 OF 2014)

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BETWEEN

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DECISION ON COSTS

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Hon Kwan JA (giving the decision on costs of the court):

1.On 19 May 2015, we dismissed the applicant’s application to lift an order for stay of execution pending appeal and granted the respondent’s application for an extension of time to file and serve a notice of appeal.

2.The respondent brought to our attention a Calderbank letter dated 4 May 2015, which was rejected by the applicant on 6 May.  It was submitted by the respondent that this letter should be taken into account in awarding the costs of the two applications.

3.The offer in the Calderbank letter was to vacate the hearing on 19 May 2015 on these terms: an order was to be made in terms of the respondent’s summons for extension of time with costs to the applicant, and leave was to be granted to the applicant to withdraw his summons to lift the stay of execution with no order as to costs.

4.The applicant’s summons was issued on 13 April 2015 on the basis that the respondent had failed to file and serve a notice of appeal on or before 9 February 2015 as ordered by this court on 30 January 2015.  It was after this summons was taken out by the applicant and only after the applicant’s solicitors had written to the respondent on 23 April 2015 that the respondent engaged solicitors and took out her summons for extension of time to file and serve a notice of appeal.

5.The applicant was justified in taking out his summons on 13 April.  We would not have deprived him of his costs in issuing his summons.  He would have done better than the Calderbank offer which was no order as to the costs of that summons.  We decline to take into account the Calderbank offer in our decision on costs.

6.We think it appropriate to consider the costs of the applicant’s summons and the respondent’s summons together.  Both applications came about because of the respondent’s failure to file and serve a notice of appeal within time.  She sought and was granted an indulgence by this court to comply with a court order out of time.  We would award the costs of both applications to the applicant.

7.We have a statement of costs for summary assessment by the applicant, claiming $52,270.  The respondent also put in a statement of costs for summary assessment of $60,033, in the event we should award costs to her.  Without leave of the court, the applicant submitted his “grounds of opposition” in response to the respondent’s statement, contending that reasonable costs to be allowed should be in the region of $29,300.

8.The applications before us were quite simply whether the respondent should have an extension of time.  We would reduce fees for work done which we regard as unnecessary, such as relating to the merits of the appeal as it was a waste of time and effort to ask us to revisit the merits which we have already considered in an earlier judgment.  On that basis, and taking into account what the applicant contended would be reasonable costs in his “grounds of opposition” of the other side’s costs, we reduce the fees claimed by the applicant from $52,270 to $29,320, of which $20,000 are the fees of counsel.

Mr Anthony Ko, instructed by Tang, Wong & Cheung, for the Applicant

Mr Solomon Lam, instructed by Cheung & Liu, for the Respondent