LU JUN v. YU QI AND OTHERS

HCCW 282/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP PROCEEDINGS NO 282 OF 2010

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BETWEEN

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J U D G M E N T

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1.  This is an application by the petitioner applying for an order that the reserved costs orders made by other judges in the course of the proceedings be allowed as the petitioner’s costs in these proceedings. They included applications for an injunction order and orders for adjournment of those applications. They also included orders for adjourning the hearing of the petition. The summons is issued pursuant to Order 62, Order 20 rule 11 and the inherent jurisdiction of the court.

2.  By a summons issued by the petitioner on 14February 2013, the petitioner applied for an order that the costs order nisi made by myself dated 31 January 2013 be varied to the effect that the 1^st and 3^rd respondents do pay the petitioner’s costs in these proceedings on an indemnity basis. 

3.  By another summons issued by the 1^st and 3^rd respondents on 12 March 2013, the 1^st and 3^rd respondents asked for an order that my said costs order be varied to an order as follows:

(i) The petitioner do pay to the 1^st and 3^rd respondents their costs of opposing the petition for winding-up on indemnity basis and

(ii) The 1^st and 3^rd respondents do pay to the petitioner his costs of the petition for unfair prejudice on a party and party basis.

Secondly, alternatively to paragraph 1 thereof, the said costs order be varied to no order as to cost. 

4.  I heard the parties’ arguments and on 21March 2013 I made an order that the 1^st and 3^rd respondents do pay to the petitioner the costs of the proceedings on an indemnity basis.  The question about the reserved costs orders had never been raised or argued by anybody at that stage. 

5.  Ms Yeung, acting on behalf of the petitioner, refers me to a note in the White Book in relation to “costs reserved” and she also relies on a decision of Master B Kwan handed down on 17 July 2001 in HCB 527/2000, Re Leung Chan Ming and Ex Parte Wong Yee Chow.  These are taxation proceedings in a bankruptcy matter.  In that case, Master B Kwan also relied on a decision of Mr Justice Kekewich in the case of How v Earl Winterton (No 4) (1904). 

6.  In the note on page 1101 of White Book (2013 ed) (Vol 1), under note 62/1/3, “Meaning of related phrases”, in sub-paragraph 5, it is said:

“‘Costs reserved’ means that the costs will be lost and will not be allowed on taxation unless the court makes a specific order dealing with them at the conclusion of the proceedings.”

7.  I take the view that the proceedings have already been concluded on the 21 March 2013 when I made, inter alia, an order dealing with the costs of the proceedings.  I also take the view that Order 20 rule 11 of the Rules of the High Court, which provides “Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court on summons without an appeal” has no application to the present situation.  There has been no accidental slip or omission on the part of the court because the matter had never been raised by anybody when my costs order was made on 21 March 2013.  I also take the view that I am functus officio and that I actually have no jurisdiction to deal with the present summons. 

8.  Furthermore, in the said judgment of Master B Kwan, she distinguished between the costs of “interlocutory applications” and “costs of the action”.  She seemed to have decided that the costs of “interlocutory applications” could not be included under the classification of “costs of the action” in the context of a costs order.

9.  In all the circumstance I dismiss the summons issued by the petitioner. 

10.  The summons is dismissed with costs to the 1^st and 3^rd respondents.  I put on record the fact that no instructing solicitor from Edward Lau, Wong & Lou has appeared in court to instruct Mr Fung on behalf of the 1^st and 3^rd respondents.  The costs of the solicitors for the 1^st and 3^rd respondents should not be allowed on taxation in relation to this morning’s summons.