HEYBRIDGE LTD AND OTHERS v. CHAN SZE SZE GABRIELLE AND ANOTHER

HCA 9563/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 9563 OF 2000

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J U D G M E N T

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1. This is an appeal by the plaintiffs against Master So's costs order made on 6 January 2004. The master was dealing with the defendants' application by summons dated 24 September 2003 for further and better particulars of the statement of claim as set out in the letter dated 12 August 2003 from the defendants' solicitors to the plaintiffs' solicitors. After hearing arguments, the master ordered that the plaintiffs do provide further and better particulars of the statement of claim as set out in the order dated 6 January 2004. He also ordered that the costs of the application be to the defendants with certificate for counsel.

2. This appeal is only in respect of the order for costs.

3. The principles governing such an appeal are not disputed and are well settled. An appeal as to costs only should not be allowed unless it could be shown that the order made by a master in the exercise of his discretion was unreasonable or erred in law namely, he either failed to take into account proper matters or took into account matters that should not have been taken into account. (Paul Y-ITC Construction Ltd v Kin Shing Co Ltd [1999] 1 HKC 511.)

4. Ms Wu, for the plaintiffs, does not rely on any error of law on the part of the master. Instead, she says that the order made in the exercise of the master's discretion was unreasonable. She submitted that the order was unreasonable as a large number of requests were either abandoned or not allowed by the master. She took me through the request for particulars to show me which requests were either abandoned or disallowed by the master and submitted that this was a substantial portion of the particulars requested. In the circumstances, it was submitted, that it was unreasonable for the master to make an order that all the costs of the application be awarded to the defendants. She submitted that either the costs should be apportioned, according to the number of requests granted or disallowed, or that there should be no order as to costs.

5. There is no dispute that, before the summons for the requests for further and better particulars was issued on 24 September 2003, the defendants' solicitors had sought the particulars by letter dated 12 August 2003. No particulars at all was supplied to the defendants until the service of the voluntary particulars on 31 December 2003 which was only 21/2 working days before the hearing of the summons which had been fixed for hearing on 6 January 2004. This was served three months after the summons was issued on 24 September 2003. In my view, this demonstrates that it was necessary for the defendants to have issued their summons for further and better particulars.

6. At the outset of the hearing on 6 January 2004 the defendants abandoned a number of requests and proceeded with the application for the other requests. Of the remaining requests, 38 requests were disallowed whereas 26 requests were allowed by the master.

7. I was also informed that the master gave oral reasons for his decision on costs. He indicated that he considered the following facts relevant :

(1) that the requests were made on 12 August 2003;

(2) that the summons was issued on 24 September 2003; and

(3) that the voluntary requests were not provided until 31 December 2003.

8. In my judgment the master was entitled to take into account the conduct of the plaintiffs prior to the hearing when dealing with the question of costs. I see nothing unreasonable in the reasons given by the master when coming to his decision on costs. It seems to me, as I have said, that it was necessary for the defendants to issue the summons dated 24 September 2003 and to press on with the application to obtain the order for further and better particulars that they eventually did obtain. The fact that the defendants did not eventually succeed in obtaining all the particulars requested does not mean that they should not get the costs of the application. I see nothing unreasonable in the master's exercise of his discretion.

9. In the circumstances I dismiss the appeal.