Tang Kam Wah and Others v. Tang Ming Yat and Others

CACV522/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.522 OF 2000

(ON APPEAL FROM HCA NO.10141 OF 1998)

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J U D G M E N T

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Stock JA (giving the judgment of the Court) :

1. The defendants apply to clarify, or vary if variation be necessary, the costs order nisi made upon the judgment delivered in this appeal on 22 December 2000. The order drawn was in the following terms, that "all costs incurred by the plaintiffs up to the date of the adjournment of the hearing below, and any other costs as may have been thrown away", were to be paid by the defendants. The defendants say, quite rightly in our view, upon reflection, that the order nisi is stated in terms that are not as precise as they might have been. They argue that, taken literally, the order is too wide, since it calls upon the defendants to pay all costs up to the date of the adjournment below and not just the cost of the hearing. They further contend that not even all the costs of the hearing below should fall upon them.

2. We agree that the order as stated is, in the circumstances of this case, too wide. The amendment to the Defence was indeed significant, though as we pointed out in our judgment it was presaged in the O.14 proceedings, and in the witness statements filed. This is not one of those cases in which it can be suggested that had the Defence originally been pleaded as it is pleaded after the amendment, the plaintiffs would not have proceeded or that they might have taken a different view of the strength of their case. The issue of costs is to be viewed as one of compensation, and not as punishment. It is instructive to see how it is the plaintiffs put the position in the argument today. It is said that the plaintiffs will likely require further and better particulars of the custom alleged; will have to call expert evidence; and recall witnesses who have already given evidence. But it is not suggested, nor could it be suggested, that the plaintiffs may have abandoned their case, or that their own case would, in the first instance, have been differently pleaded; and it is difficult to see in those circumstances why the plaintiffs are not adequately compensated by an order that the costs of the hearing before the amendment be to the plaintiffs in any event, as well as any other costs thrown away by reason of the amendment. We think that the hearing below was to all intents and purposes a hearing that proceeded on a false premise as a result of the failure of the defendants properly to plead their case. The proper order should be, and the order we make is, that the defendants shall pay the costs of the hearing in the Court of First Instance up to the point of adjournment, as well as any other costs thrown away by reason of the amendment.

3. It ought to have been obvious to the plaintiffs, in our view, that the course suggested by Mr Chain was the only sensible course to take in these circumstances, and one which would not be in any way to the disadvantage of the plaintiffs. The plaintiffs have resisted this application to clarify or vary the order nisi and, in our judgment, they should pay the costs of this application in any event.