SAM FAI CONSTRUCTION CO LTD v. YAT MING CONSTRUCTION & ENGINEERING LTD AND ANOTHER

HCCT 64/2020

[2022] HKCFI 2119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 64 OF 2020

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D E C I S I O N

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1.  On 31 May 2022, this Court handed down its decision, inter alia, to adjourn the trial of the action (“Decision”), and made various costs orders. The reasons for the orders made on the interlocutory applications, including the Defendants’ application for leave to adduce additional expert evidence, and for the costs orders, were stated in the Decision and will not be repeated here. On 13 June 2022, both the Plaintiff and the Defendants made separate applications by summonses to vary the costs orders, and the summonses were ordered to be dealt with by paper disposal.

2.  The abbreviations used in the Decision are adopted below.

3.  The Plaintiff seeks to vary the costs orders, for summary assessment and payment forthwith of the costs of the Expert Evidence Application and of the costs of the Adjournment Application. The Defendants seek variation to provide for summary assessment and payment forthwith of the costs of and the withdrawal of the Specific Discovery Application, the costs of the Supplemental List Strike Out Application, and for variation of the costs of the Adjournment Application.

4.  There is no substantial opposition to the Defendants’ application to expressly exclude from the costs order of the Expert Evidence Application the costs of and occasioned by the preparation of the expert report(s) by the Single Joint Expert(s), and the court attendance of such expert(s), which are to be in the cause of the action. I accede to the variation to such extent, and also agree to order summary assessment of such costs, with certificate for Counsel, and for the costs assessed to be paid forthwith.

5.  I am also prepared to vary the orders made in the Decision, to provide for the costs of and occasioned by the Supplemental List Strike Out Application, and the costs of and the withdrawal of the Specific Discovery Application to be summarily assessed, both with certificate for counsel and for the assessed costs to be paid forthwith.

6.  However, in relation to the costs order made on the Adjournment Application, the reasons have been stated in the Decision, and there is no good ground shown for the Defendants’ application to vary same to be reserved. Nor am I prepared to order that such costs should be summarily assessed or to be paid forthwith. The question of the costs occasioned and thrown away by the adjournment need to be considered in some detail by reference to the work carried out, the documents involved, and whether they were thrown away by the adjournment. Such exercise is more appropriately to be conducted by the taxing master in the usual course. It is also open to the Court to order after trial that the costs be taxed on the scale appropriate to the amount awarded at trial, after the Plaintiff’s original claim and the Defendants’ counterclaim have been determined.

7.  The timetable proposed by the parties for the filing and service of Statements of Costs and Statements of Objections are allowed and made in the terms sought.

8.  In respect of the interlocutory applications, since both parties seek variation by summary assessment with certificate for counsel (apart from the Defendants’ stance on the Adjournment Application), there is no reason why they cannot agree on the terms of the variation made by the 2 summonses, and narrow the scope of their dispute. To discourage unnecessary applications to the Court, I refuse to allow any costs on the variation summonses.