WIN PROFIT CORPORATION LTD v. WORLD ORIENT INVESTMENT LTD

HCA 1487/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1487 OF 2009

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RULING  ON  COSTS

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1.  On 29 December last, I delivered judgment on the Defendant’s appeal against certain orders made by Master Kwan on the 15-minute call-over of the Plaintiff’s summons under Order 14, RHC.  The appeal was allowed and I made an order nisi directing that the Plaintiff should pay the Defendant’s costs of the appeal in any event.  It is now submitted on behalf of the Plaintiff that I should make another form of order.  Miss Lan, who appears for the Plaintiff, submits that the appropriate order should be costs in the assessment of damages, in circumstances where the Defendant has submitted to judgment with damages to be assessed.  Alternatively, Miss Lan submits that, at worst, the order should be Defendant’s costs in the assessment. 

2.  Whilst it is right to say that at the hearing before the Master, it was the Master who made most of the running by being highly critical of the fact that the Defendant was not ready and required more time to file its evidence in reply to the application for summary judgment, the fact remains that the Plaintiff, through Miss Lan, was perfectly content to go along with the Master’s approach to the hearing and the orders that she eventually made.  It is also worth observing that Miss Lan’s skeleton for that initial hearing was directed at obtaining judgment on that hearing.  And so, there is no doubt that the Plaintiff’s stance was going to be very firm, resisting any suggestion that any indulgence should be given to the Defendant to get its evidence in and if Miss Lan could persuade the Master, she had come prepared to ask for judgment there and then.

3.  I have no doubt that this was an appeal against orders that the Plaintiff was perfectly content with and this was reflected in the strong support of the Master’s Orders that Miss Lan had argued for on the appeal.  Now, in seeking to vary the order nisi, Miss Lan has put in a 13-page skeleton raising a variety of points which she says should be taken into account on the costs of the appeal.

4.  For my part, the matter falls to be decided on a much more straightforward basis.  The Master’s Orders were in my judgment quite wrong in the circumstances.  The Plaintiff was supportive of them at the time and strongly sought to uphold them on appeal.  The appeal was allowed and my Orders represent a very marked departure from the Master’s approach.  This has turned out to be a discrete matter which can and ought to be reflected by an order for costs which gives the successful party its costs in having had to come to court to correct what had occurred in the court below.  These costs should follow the event and accordingly I propose to confirm the order nisi.  The costs of preparing the written argument for this ruling will also be to the Defendant in any event, to include counsel’s fees in preparing the written argument.