SIN HUA TRUSTEE LTD v. THE PERSONAL REPRESENTATIVE(S) OF THE ESTATE OF PAN LOUEY also known as LOUIE WAI WAN also known as LOUEY WAI WAN AND ANOTHER

HCMP 2626/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2626 OF 2011

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BETWEEN

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DECISION ON COSTS

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A.  Whether a non-partyis a party?

1.  On 9 February 2012, I acceded to the Plaintiff’s application by summons to set aside the acknowledgement of service of the proceedings (“AS”), which AS was apparently signed by Choy Bing Wing (“Choy”) in the capacity of the attorney of the 1^st Defendant in person.

2.  In the Plaintiff’s summons, it seeks costs against Choy.

3.  The matter that falls for my decision is whether Choy, who is not a party to the proceedings, can be regarded as a party, and ordered to pay costs.

B.  Discussion

B.1 Whether Choy is a party

4.  At the hearing, Choy was absent though he had notice of the hearing (as evidenced by his letter of 19 January 2012 addressed to the Chief Justice, the Chief Judge of the High Court and myself and subsequently a letter dated 9 February 2012 the court only received after the hearing).  Counsel for the Plaintiff, Mr. Li (appearing together with Mr. Kwong) submitted that costs should follow the event, and Choy should pay for the costs of the summons.

5.  On the issue of costs, I raised a question of whether Choy should be joined as a party to the proceedings and be given an opportunity to be heard in accordance with the requirements under the new O.62 r.6A, Rules of the High Court (“RHC”) when costs are to be awarded against a non-party.

6.  It is Mr. Li’s submission that Choy, though a non-party to the proceedings, is however deemed to be a “party” by his having been served with the summons (in which the Plaintiff has asked for costs against him) in accordance with the definitional section of s.2, High Court Ordinance (Cap.4) (“HCO”), which defines a “party” to include “every person served with notice of or attending any proceeding, although not named on the record”.

7.  As a result of the Civil Justice Reform, a new section 52A(2) has been added to the HCO that expressly empowers a court (subject to the rules of court) to award cost against a person who is not a party to the relevant proceedings. The rules of court now find their way to the new O.62 r.6A as stated in §5 above.

8.  I accept counsel’s submission, and am of the view that the requirements of O.62 r.6A, RHC, are not engaged.  The rules should only be applied to a person who is not a party and has neither been served with notice of proceedings nor appeared at the hearing of the relevant proceedings.  An example of such a non-party would be a person who has funded litigation (but this person has never been served with the notice of or attended the proceedings). In such instance, when a party in the relevant proceedings wishes to make such a person liable for costs, the procedure lays down in O.62 r.6A should be observed.

9.  For the aforesaid reasons, I find that Choy is a party within the meaning of s.2, HCO.

B.2 Should Choy bear the costs of the summons?

10.  In the summons, the Plaintiff has asked the court to award costs against Choy.  Given the circumstances of this case, I do not feel there is any injustice to Choy for the court to decide on the matter of costs in Choy’s absence as he has been served with the summons, and he - apart from the letter of 19 January 2012 [1]referred above, in which he objected to costs on the ground that he is not a party to the proceedings - has not filed any  submission or evidence in opposition to the summons or appeared at the hearing.

11.  The Plaintiff has succeeded in setting aside the AS. The content of the AS and the correspondence I have referred above clearly shows that it was Choy who entered the AS in particular having regard to the fact that the Plaintiff has not even served the Originating Summons. In the circumstances, I think that it is fair that Choy should bear the costs of the summons, and so order.  I further order that costs be summarily assessed in lieu of taxation.

12.  The Plaintiff has not submitted any costs statement for the purpose of gross-sum assessment. In considering the appropriate amount of costs, I take into consideration of the nature of the summons, and the fact that it was only listed for 15 minutes.  I am further of the view that it is not necessary for 2 counsel to attend, and that a counsel of about 5 years’ standing would be reasonable. Taking a broad-brush approach, I consider that the amount of proportionate and reasonable costs should be in the sum of $25,000.

C.Order

13.  I make a costs order nisi that Choy do pay the Plaintiff’s costs of the summons assessed at $25,000.  Should any party wish to vary the said costs order, an application shall be made within 14 days of the handing down of this Decision, failing which, the order shall become absolute.