HCA 1645 / 2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1645 OF 2009

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D E C I S I O N

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A. Introduction

1.  In my judgment (“the Judgment”) dated 17 June 2010, I made an order nisi at para 100 that there be no order as to costs of the Striking Out Summons (as defined in the Judgment).    I gave the reason that although Mr Lieu (as defined in the Judgment) was successful in resisting the more substantial part of the Striking Out Summons, he was able to do so only because the Court granted him leave to resile from his earlier admissions in the pleading.  As a result, the Court was of the view that a just order in costs should be no order as to costs.

2.  By way of its Summons dated 28 Jun 2010, JZD (as defined in the Judgment) asks to vary the costs order nisi to the effect that:

(1) It be entitled to half of the costs of the Striking Out Summons, including the costs reserved by orders dated 13 January, 10 February and 29 March 2010.  I will refer these as “the Reserved Costs”; or

(2) Alternatively, the costs of the Striking Out Summons including the Reserved Costs be JZD’s costs in the cause.

3.  Ms Chan for JZD submits that the costs order nisi should be so varied because:

(1) JZD would have been successful substantively in its Striking Out Summons if not because of the Court’s granting of leave to Mr Lieu to resile from his admissions.

(2) However, it was Mr Lieu’s primary position all the way up to and including at the hearing that there was no admission.

(3) It was therefore right, appropriate and necessary for JZD to take out the Striking Out Summons seeking to strike out the complained parts of the Amended Statement of Claim.

(4) Further, insofar as Mr Lieu’s fall-back and alternative position of resiling from his admissions is concerned, it was again necessary for him to come to Court to ask for leave.  This he could only do so after JZD had rightly taken out the Striking Out Summons.

(5) In the circumstances, even though eventually Mr Lieu had successfully invoked the Court’s discretion to give him leave, and thus resisted the substantial part of the Striking Out Summons, it is only just and fair in all the circumstances that JZD should be entitled to half of its costs to reflect on the one hand the above and also to take into account of the Mr Lieu so called “success” in the matter on the other hand.

4.  On further reflection, I think Ms Chan is right and accept her submissions.  In particular, I accept that most of the evidence and arguments raised in the affirmations filed in relation to the Striking Out Summons and the skeletons relate to the contentions as to whether there were admissions in the pleading on the part of Mr Lieu.

5.  In the premises, I will vary the costs order nisi to the extent that JZD is entitled to half of its costs of the Striking Out Summons, including the Reserved Costs.

6.  I further order that costs of this application be to JZD, to be taxed if not agreed.