SINGH HARDEV v. DOKE JITENDRA AND ANOTHER

DCCJ 2569/2016

[2018] HKDC 1304

IN THE DSTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2569 OF 2016

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DECISION

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1.  There are two applications before the court: the plaintiff’s application to vary the costs order and the 1^st and 2^nd defendants’ application to seek leave for appeal.

2.  The plaintiff was represented at the trial but all parties are now acting in person.

3.  I shall deal with the plaintiff’s application first.

The plaintiff’s application

4.  In the judgment dated 26 July 2018, I have given a costs order nisi that the there be no order as to costs, giving the reason being that both parties have been dishonest: the plaintiff had lied to exaggerated the size of the loan, and the defendants had lied in denying the loan. Thus, although I found for the plaintiff, I see that it is just and fair to give a no order as to costs.

5.  The plaintiff, then still represented by Messrs. Yu San Yau Mak and Lawyers, took out an application out of time on 28 August 2018 to seek leave to vary the costs order “to the effect that the defendants are to pay for the plaintiff’s costs or part of the plaintiff’s costs of this action, to be taxed if not agreed”.

6.  The plaintiff submitted to the court that the ground for this application was that the defendants have been deliberately delaying the case so that the trial which was fixed for 2 days became a 3-day trial so he had to pay an extra HK$18,000 (which I take to mean an extra day of counsel’s brief). When asked specifically how he thought that the defendants had caused the delay, the plaintiff could not give any specific examples but that “the defendants did not have any evidence, he (meaning the 1^st defendant) just made up the evidence and dragged on the case”, but the plaintiff submitted that he agreed with the judgment.

7.  When asked whether, in view of his submission, the plaintiff was asking for HK$18,000 as costs. The plaintiff said that the defendants should pay all his costs.

8.  I would think that if the plaintiff agreed with the judgment, then he must agree with my findings that both parties have lied so if the plaintiff’s complaint was that the 1^st defendant was making up evidence which caused the delay, he himself must also be similarly culpable.

9.  I therefore see no basis for this application and accordingly dismiss the application.

The 1^st and 2^nd defendants’ application

10.  The 1^st defendant has filed and served an affirmation in support. However, it appeared that he was objecting to the part of the judgment which was obiter. The only other objection he made was his disagreement with the factual finding of the court of the existence of the loan, in particular, he asked that “the court should ask to check the MTR CCTV camera on 25 June: D1 never met the plaintiff”.

11.  It should be noted that the defendants have adduce no such evidence either at the trial or even now at this application.

12.  During the hearing, the 1^st defendant reiterated that he never received any money from the plaintiff and requested the plaintiff (or the court to order) to provide the CCTV footage.

13.  As such, the defendants have not advance any grounds of objection in law or finding of facts based on available evidence at trial. The 1^st defendant was merely making a bare assertion of the existence of evidence which (he claimed) would support his appeal. It is, of course, not a matter for the court to adduce evidence on behalf of the parties.

14.  Section 63A(2) of District Court Ordinance, Cap 336 provides that :

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that—

(a)the appeal has a reasonable prospect of success; or

(b)there is some other reason in the interests of justice why the appeal should be heard.”

15.  For the reasons stated above, I am not convinced that there is any reasonable prospect of success in the appeal. I also find no reason in the interests of justice why an appeal should be heard.

16.  The application is accordingly dismissed.

Costs

17.  As both applications failed, I would order that there be no order as to costs in respect of both applications.