THE INCORPORATED OWNERS OF TUNG LO COURT v. TSUI WAI YIP

CACV 27/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 27 OF 2015

(ON APPEAL FROM DCCJ 3333 OF 2011)

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DECISION ON COSTS

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Hon Poon JA (giving the Decision on Costs of the Court) :

1.  By a judgment dated 3 August 2015, we allowed the defendant’s appeal against the judgment of Deputy Judge B Mak dated 4‌ August 2014 to the extent that the award made by the Judge against the defendant on the plaintiff’s claim be reduced from HK$400,000.00 to HK$200,000.00. We further made an order nisi that :

(1) the costs order made by the Judge ordering the defendant to pay the plaintiff 55% of the costs be replaced by an order that there shall be no order as to costs (“the 1^st Order Nisi”); and

(2) the defendant shall have the costs of the appeal, to be taxed on a party and party basis if not agreed (“the 2^nd Order Nisi”).

2.  By a summons dated 17 August 2015, the plaintiff applied to vary the 2^nd Order Nisi to an order that there shall be no order as to costs of the appeal (“the August Summons”).  On the same date, Yuen JA directed that the August Summons be dealt with on paper and gave consequential directions for filing of submissions.  But the plaintiff did not file any written submissions as directed.  Instead, it took out another summons dated 17 September 2015 (“the September Summons”), seeking leave to file written submissions out of time and leave to file an affirmation of Mr Lam Mo Chiu.  On 23 September 2015, Poon JA directed that the September Summons be dealt with on paper and gave directions for filing of submissions.

3.  On 5 October 2015, the plaintiff lodged with the court its written submissions.  In [2] of the written submissions, Mr Cheung, counsel for the plaintiff, stated that the plaintiff applied for an order that :

(1) the Judge’s costs order below do stand; or alternatively that there be no order for costs below;

(2) there shall be no order as to the costs for the appeal.

So in effect the plaintiff now also seeks to vary the 1^st Order Nisi.  However, that is not permissible.

4.  Under Order 42, rule 5B(6), Rules of the High Court, where the court makes a costs order nisi, unless an application has been made to vary that order, that order shall become absolute 14 days after the decision is pronounced.  An application to vary a costs order nisi must be by way of summons : see Hong Kong Civil Procedure, 2016 Edition, Vol 1, §32/6/9A at p 738.

5.  Here, by the August Summons, the plaintiff only sought to vary the 2^nd Order Nisi.  There has never been any properly constituted application, by way of summons, to vary the 1^st Order Nisi at all.  By virtue of Order 42, rule 5B(6), the 1^st Order Nisi became absolute on 17 August 2015.  What counsel stated in [2] of his written submissions is of course not a properly constituted application as such.  Even if one were to overlook the requirement for a summons and treat it as an application to vary the 1^st Order Nisi, it is in any event too late.  For it has already become absolute on 17 August 2015.

6.  The plaintiff is bound by what it sought by way of the August Summons.  It may apply to vary the 2^nd Order Nisi only.  Mr Lam Mo Chiu of the plaintiff devoted his affirmation, which we have read de bene esse, to the matters that he relied on to vary the 1^st Order Nisi.  They are irrelevant to the costs of the appeal.  Likewise, in his written submissions, Mr Cheung for the plaintiff focused principally on the 1^st Order Nisi.  He did not make any separate submissions on the 2^nd Order Nisi.  It seems that the only point he took was that the normal rule that costs would follow the event may be departed from if there are exceptional circumstances.  However, he has failed to identify any exceptional circumstances, and we have seen none, which justify a departure from the normal rule of costs following the event for the costs of the appeal.  The application to vary the 2^nd Order Nisi fails.

7.  For the above reasons we dismiss both the August Summons and the September Summons.  We further order the plaintiff to pay the defendant the costs of the Summonses.  The defendant shall lodge his skeleton bill of costs within 14 days.  The plaintiff shall lodge his statement of opposition (limited to two A4 pages), if any, within the next 7 days.  We will then assess the costs summarily on paper.