CHOW KWAN YEE v. LEUNG MEI YIN MAY AND ANOTHER

HCA 1260/2017

[2020] HKCFI 272

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1260 OF 2017

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DECISION

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1.  On 13 December 2019, this court handed down a judgment (“the Judgment”), in which I allowed P’s claim and dismissed D2’ s counterclaim. I also made a costs order nisi (“the Costs Order Nisi”) that 80% of the costs of these proceedings (including all costs reserved) be paid by Ds to P, and the remaining 20% be paid by D2 to P. Those costs should be taxed on the High Court’s scale. For ease of reference, the abbreviations used in the Judgment are adopted herein.

2.  On 20 December 2019, Ds’ solicitors wrote to the court and said that Ds would like to be heard in respect of the Costs Order Nisi.  It has not been set out in the letter whether Ds are seeking a variation of the Costs Order Nisi, and if yes, what variation is being sought. Further, it is trite that an application to vary a costs order nisi should be made by a summons and not by a letter.  The point has been made clear by Ma CJHC (as he then was) in PCCW-HKT Telephone Limited v Telecommunications Authority[1], in which the learned judge said:

“11. Lastly, I would just like to make some observations on the way in which the TA has made the present application to vary the costs order nisi under O.42, r.5B(6). As mentioned above, this was done by way of letter. This was wrong. Applications to court should be made by way of a summons or motion, and not by the informal way that was chosen in the present case. The reason for this requirement is to enable the other side and the Court to understand exactly the nature and extent of what is being asked for. Otherwise, there is a danger that it becomes unclear just what is being sought from the Court, thereby allowing parties to ask for relief in a haphazard manner. The present case provides a good example. On the TA’s part, an application that the costs order nisi be changed to one of no order as to costs developed into an application that while this was the primary order sought, the alternative relief was one of partial costs in favour of both sides. On PCCW’s part, a late application was made in its written submissions for a certificate for 2 counsel (which, as it turned out, was unnecessary).”

3.  On 30 December 2019, I gave the following direction to the parties (“the 30 Dec Direction”):

“Any application for an order varying the costs order nisi made in the judgment dated 13 December 2019, and any application for leave to make the said application outside the 14-day period prescribed in Order 42 rule 5B(6), must be made by an inter partes summons.”

4.  On 8 January 2020, Ds filed a summons (“the summons”) seeking for an extension of time to enable them to apply for varying the Costs Order Nisi, and for a variation of the Costs Order Nisi to the extent that the costs provided in the order are taxed on the District Court’s scale.  The summons is support by an affirmation made by D1 on 8 January 2020 (“the affirmation”).

5.  On 13 January 2020, the order made in the Judgment was sealed and filed.

6.  I have directed that the summons would be determined on paper without a hearing, and the parties have provided me their respective written submissions.  Having considered the papers, I am of the view that there is no merit in the applications made by Ds in the summons, and the summons must be dismissed.

7.  As to the application for an extension of time:

(1) An application to vary the Costs Order Nisi should be made within 14 days after the handing down of the Judgment on 13 December 2019[2].  The summons was only filed on 8 January 2020.  However, there is no dispute that I have the jurisdiction to extend time after the expiration of the 14-day period. The question is whether I should exercise my discretion to grant the extension of time sought by Ds.

(2) On 20 December 2019, Ds have through their solicitors wrote to the court indicating that they would like to be heard in relation to the Costs Order Nisi.  However, as said before, an application for variation of a costs order nisi should be made by a summons.  Bearing in mind that Ds are legally represented at all times, Ds’ solicitors’ letter dated 20 December 2019 cannot be treated as an application for varying the Costs Order Nisi.

(3) In the affirmation, D1 said that she and D2 had left Hong Kong for a holiday before Christmas, and only came back to Hong Kong on 2 January 2020.  They only came to know the 30 Dec Direction on 3 January 2020.  D1 claimed that they “at once” took out the summons.  However, the summons was not filed on 3 or 6 January 2020, but was only filed on 8 January 2020.  No explanation has been given as to why Ds have only taken out the summons after waiting for a few days.

(4) In my view, there is no satisfactory explanation in relation to Ds’ delay in taking out the summons.  In the absence of a satisfactory explanation, the court should not exercise the discretion in favour of Ds.

(5) Further, for the reasons set out in the below, there is no merit in the application for varying the Costs Order Nisi.  That being the case, there is no reason to grant the time extension sought by Ds.

8.  As to the application for varying the Costs Order Nisi:

(1) Mr Ng for Ds submits that P’s claim is within the District Court’s jurisdiction at all times, ie before and after 3 December 2018.  In Mr Ng’s submission, at the time of the commencement of this action, there was clearly no prospect that P would establish a claim exceeding the District Court’s jurisdiction. 

(2) The aforesaid is the only point relied upon by Ds in support of the variation sought.

(3) With respect, the point is incorrect.  As rightly submitted by Mr Kwong for P, P’s claim is for the entire outstanding indebtedness of HK$1,799,514, and by the order made by this court in the Judgment, Ds shall continuously repay HK$8,000 to P monthly until the entire outstanding indebtedness is fully repaid.  P’s claim was not within the District Court’s jurisdiction before 3 December 2018.  There is nothing wrong for P to commence these proceedings against Ds in the High Court in 2017.

(4) As to why costs are awarded on the High Court’s scale, reasons have been given in [60] of the Judgment.  Having considered the submissions made by counsel, I maintain the same view.

(5) In my judgment, Ds have failed to put forward any valid reason in support of the variation sought.

9.  I dismiss the summons.  Costs of the summons should follow the event and be paid by Ds to P.  Those costs be summarily assessed at HK$40,000.