CHANG KING TO v. CHANG KING HIM CLARENCE AND ANOTHER

HCA 1574/2017

[2020] HKCFI 3056

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1574 OF 2017

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DECISION

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1.  By a judgment handed down on 28 October 2019 (“the Judgment”), I dismissed KT’s claim in these proceedings and in HCA 2518/2015. KT has lodged an appeal against the Judgment, ie CACV 514/2019. The appeal has not yet been heard by the Court of Appeal.

2.  By a summons dated 9 November 2020 (“KT’s summons”), KT applied for the following:

(1)     the costs order contained in my order dated 29 August 2019 be set aside and be replaced by an order that Clarence should bear his own costs of his summons filed on 22 August 2019 (“Clarence’s summons”); and

(2)     the taxation of the costs awarded to Clarence in the Judgment be stayed pending the outcome of CACV 514/2019.

3.  This decision should be read together with the Judgment.  For ease of reference, the abbreviations used in the Judgment are adopted herein.

1^st application

4.  I would first set out the events relevant to the order made by me on 22 August 2019:

(1)     On or about 10 April 2019, KT filed a notice to act in person, in which KT stated a PO Box address as his address.

(2)     In the pre-trial review before me on 9 July 2019, Clarence’s counsel submitted that KT had failed to comply with Order 6, rule 5 by failing to specify his residential address in the notice to act in person filed by him.  The PO Box address could not be treated as a residential address.  I agreed and made an order requiring KT to file a notice to act in person containing his residential address on or before 30 July 2019.

(3)     On or about 22 July 2019, KT filed a notice to act in person.  On or about 8 August 2019, KT filed another notice to act in person.  On 22 August 2019, by Clarence’s summons, Clarence applied for an unless order to compel KT to file a notice to act in person containing his residential address.  Clarence’s solicitors took the view that the notices to act in person filed by KT in July and in August 2019 did not contain a residential address.

(4)     Clarence’s summons was heard by me on 29 August 2019.  I allowed the application and ordered that costs of Clarence’s application be to Clarence in any event.

5.  I must say that the 1^st application is entirely without merit.  The costs order made by me on 29 August 2019 is a costs order absolute and has been sealed.  I do not have jurisdiction to alter that costs order now.  Further, there is no justification in support of any variation of the costs order.  Clarence succeeded in seeking an unless order against KT.  Costs should follow the event.  There is no reason why there should be a departure from this general rule.

6.  The 1^st application must be dismissed.

2^nd application

7.  The 2^nd application is an application for stay of execution of the costs order made by me in the Judgment.  The principles concerning stay of execution pending appeal are well established and have been set out by Ma J (as he then was) in Star Play Development Ltd v Bess Fashion Management Co Ltd^[1].  The existence of an arguable appeal (ie one with reasonable prospects of success) is the minimum requirement before a court would even consider granting a stay^[2].

8.  KT has not demonstrated why his appeal should be considered as an appeal having reasonable prospects of success.  That being the case, no stay of execution should be granted.

9.  KT alleges that there is an agreement between him and Clarence that taxation of the costs should only be done after the determination of the appeal.  KT says that such an agreement has been reached by his letter to Clarence’s solicitors dated 30 May 2020.  In KT’s submissions, in his letter, he has proposed to Clarence’s solicitors that taxation should only be done after the determination of the appeal.  There is no reply to his letter, and hence his proposal has been accepted by Clarence.

10.  I refuse to accept KT’s submissions.  In my judgment, no response to KT’s proposal cannot be treated as an acceptance of his proposal.  I am of the view that there is no agreement between KT and Clarence to postpone taxation until after the determination of the appeal.

11.  The 2^nd application must also be dismissed.

Disposition

12.  I dismiss KT’s summons.  Costs should follow the event.  I order that costs of KT’s summons be paid by KT to Clarence forthwith, and those costs be summarily assessed.  There be leave to Clarence to file and serve a bill of costs for summary assessment within 7 days, and leave to KT to file and serve a written reply to the said bill within 7 days thereafter.