TANG ANDY v. CHAN TIN CHOI AND OTHERS

DCCJ 2814/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2814 OF 2015

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D E C I S I O N

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1.  These are my decisions on costs.  There are three summonses before me, namely, one application from the plaintiff, filed on 1 November 2016, for specific discovery and striking out of the defence and the counterclaim of Madam Siu Yuk-fong. Secondly, a summons filed by the above-mentioned Madam Siu on 31 March 2017, to add herself as the 5^th defendant.  Thirdly, a summons filed by Madam Siu to add herself as an additional defendant in the proceedings and for leave to file and serve her defence and counterclaim dated 28 July 2016.  The third application was made on 19 July 2017.

2.  Parties are able to dispose of the three summonses by consent, which I have made such order accordingly, leaving behind the issues of costs. 

3.  In relation to the specific discovery, in fact, parties do not have argument today as the 2^nd and the 6^th defendants have amended their defence subsequent to the plaintiff’s summons.  Therefore, the plaintiff considered that the specific discovery application is no longer necessary and he thus proposed no order as to costs of his application.  However, the 8^th defendant seeks costs of this application though it does not concern with her.  As the defence was amended subsequent to the plaintiff’s issuance of this specific discovery, I consider the proper costs order should be the 1^st defendant’s costs be costs in the cause and no order as to costs as between the plaintiff and the 2^nd, 3^rd, 6^th and 7^th defendants.

4.  Regarding the striking-out application and the 8^th defendant’s application to join in filed on 31 March 2017, no doubt the 8^th defendant filed the defence and counterclaim before she was granted leave to join as a defendant. On this procedural defect, her defence and counterclaim filed on 28 July 2016 is liable to be struck out as she has no locus to file that defence and counterclaim without taking into account the challenge made by the plaintiff in his striking-out application.  Therefore, both the 8^th defendant’s first application for joinder and the plaintiff’s striking-out application should be to the plaintiff. Besides, the 8^th defendant also admits that her first joinder application is defective in the sense that she sought to be added as the 5^th defendant instead of the 8^th defendant.

5.  As to the latest application for joinder made by the 8^th defendant, since parties agreed that Madam Siu should be joined as the 8^th defendant, I make the usual costs order that such application’s costs be in the cause.

(Further submissions on summary assessment of costs)

6.  The 8^th defendant shall pay the plaintiff’s costs of the plaintiff’s striking-out application and the 8^th defendant’s first joinder application, agreed at HK$57,000, payable within 28 days.