HOIE SOOK FONG AND ANOTHER v. ISMAIL HALIMA AND ANOTHER

HCA1974/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1974 OF 2006

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D E C I S I O N

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1. This is an application by the 1^st defendant to vary the costs order nisi made when I gave judgment on 24 December 2008.  This application relates to the costs of the 1^st defendant in relation to the claims for indemnity by the 1^st and 2^nd defendants against each other.

2. Although in the summons the 1^st defendant asked for a variation in paragraph 1 for the plaintiffs to pay the 1^st defendant her costs of the application for indemnity against the 2^nd defendant and her costs of resisting the 2^nd defendant’s application for indemnity, this is no longer pursued by Mr. Leung, counsel for the 1^st defendant.  Instead, he relies on the alternative in the summons, namely, that the costs order be varied to include the provision that the 2^nd defendant do pay the 1^st defendant her costs of the application for indemnity against the 2^nd defendant and her costs of resisting the 2^nd defendant’s application for indemnity to be taxed.

3. Having heard the submissions, I am satisfied that it was right for Mr. Leung not to proceed further against the plaintiffs in respect of the variation of the order for costs. 

4. I am satisfied, as submitted by Mr. Cheung, for the plaintiff, that the claims by the 1^st and 2^nd defendants against each other are proceedings which are independent of the claims in the main action by the plaintiff against the 1^st defendant and alternatively, against the 2^nd defendant.  This is clear from the passages quoted by Mr. Cheung in marginal note 16/0/2 Hong Kong Civil Procedure 2009 and paragraph 6-006 at page 119 of Andrew’s Principles of Civil Procedure.

5. I am not persuaded, and Mr. Leung has not pressed the point, that it was inevitable for the 1^st and 2^nd defendants to claim indemnity against each other.  The 1^st and 2^nd defendants’ third party proceedings are in principle separate proceedings independent of the plaintiff’s main action.  It was rightly pointed out by Mr. Cheung there was no issue between the plaintiffs and the defendants in their third party proceedings against each other. 

6. The 2^nd defendant has not appeared today on this application but it has written to the solicitors for the 1^st defendant by a letter dated 2 February 2009 from its solicitors.  They have made it plain that they have no objection to an order being made in the terms of the summons. 

7. In the circumstances I make an order that the costs order be varied to provide for an order as follows :

That the 2^nd defendant do pay the 1^st defendant her costs of application for indemnity against the 2^nd defendant and her costs of resisting the 2^nd defendant’s application for indemnity to be taxed.