XCHRX DENSITY INDUSTRIAL LTD. v. SKY PLAY CO. LTD.

HCA 2302/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2302 OF 1998

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D E C I S I O N

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1. By order dated 8 December 1998 Master B. Kwan made an order referring this matter to me. Her order is as follows :

"IT IS DIRECTED that the Bill of Costs be brought before the Honourable Mr. Justice Sakhrani for clarification on whether it is intended by the Order dated 30th July 1998 that the costs of the asterisked items in the Bill of Costs shall be split between the parties on a fifty-fifty basis or be decided and apportioned on an item by item basis by the taxing Master."

2. The matter arises in this way. On 30 July 1998, I gave judgment for the Plaintiff, Density Industrial Limited ("Density") against the Defendant Sky Play Company Limited ("Sky Play") for the sum of HK$247,539.06 on a claim for a dishonoured cheque in this action. The Plaintiff's claim in this action is for the said sum on a dishonoured cheque as well as for the sum of HK$600,000 in respect of goods sold and delivered by Density to Sky Play. The hearing of the application for summary judgment followed immediately after the hearing for an interlocutory injunction and other interlocutory relief in another action, High Court Action No. 6203 of 1998, by two Plaintiffs against Density. Wing Corporation was the 1st named Plaintiff and Sky Play was the 2nd named Plaintiff. In that action, the Plaintiffs claimed against Density for interlocutory relief in respect of infringement of copyright in artistic works namely, drawings of toys and packaging of toys.

3. After two days of full argument by counsel for the parties, I held that there was a serious question to be tried but that because I was not satisfied that the balance of convenience was in the Plaintiffs' favour, I declined to grant an interlocutory injunction. The order I made in respect of that application was that costs should be in the cause. The order I made in respect of the application for summary judgment in this action was that the costs of the application and the costs of the action insofar at it related to the claim for HK$247,539.06 be to Density.

4. As far as the hearing of both applications were concerned, certainly the hearing in respect of the application for summary judgment in this action was much shorter than the hearing for the interlocutory relief in action no. 6203/98. The point has been, however, made by Mr Lo, for Density, that a lot of the material that was used in the interlocutory injunction proceedings in action no. 6203/98 was referred to and relied upon by Sky Play in seeking to oppose the application for summary judgment in this action. For that reason, he argues that the costs that were common to both applications should be split fifty-fifty so that 50% of the costs of the items marked with an asterisk in the Bill of Costs submitted to the Master should be allowed and awarded to Density on a taxation of costs in this action.

5. I accept that there has been some overlap in the evidence when Density pursued its application for summary judgment in this action. Some of the affirmations in the application for interlocutory injunction in action no. 6203/98 were referred to and relied on in the application for summary judgment here in this action but I must remember that there are two Plaintiffs in action no. 6203/98, and Wing Corporation being the 1st named Plaintiff was not involved at all in this action. Also, I am not persuaded that all the evidence that was used in the application for interlocutory injunction was indeed relied on in the application for summary judgment in this action. By way of example, Mr Tong has referred to the evidence in respect of ownership and subsistence of copyright; it can only be relevant in action no. 6203/98.

6. I am not persuaded that all the items marked with an asterisk in the Bill of Costs should be split on a fifty-fifty basis. It certainly was not my intention that half of the costs in the interlocutory application proceedings in action no. 6203/98 should be awarded to Density. As there is some overlap in the evidence, the proper course is to tax and apportion each of items relied on. That is a task that has to be performed by the taxing Master. So, to answer to the question posed by the Master, I would say that the asterisked items in the Bill of Costs should be decided and apportioned on an item by item basis by the taxing Master. And I refer this matter back to the taxing Master so that the taxation may proceed.

[After hearing submissions]

7. I direct that the Defendant do file an itemised list of objections to the Plaintiff's Bill of Costs within 14 days from today. I think that the proper order for costs is that the costs of today's hearing and the costs of the hearing of the preliminary issue before Master Kwan on 8 December 1999 be costs to the Defendant to be taxed and paid forthwith.