XCHRX SHUM KONG & ANOTHER v. CHUI TING LIN TERESA & ANOTHER

HCA16227/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 16227 OF 1999

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D E C I S I O N

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1. This is an application to amend the costs order nisi. The only costs order which can be amended is that order in the last paragraph of my Judgment, and none of paragraphs (1) to (4) under the heading "Judgment" on page 32 of my original judgment.

2. The effect that I intended to achieve, by the original judgment, was firstly that the Purchasers should get their deposit back; and that has happened.

3. I then intended that the Agency should indemnify the Purchasers for the difference between what the Purchasers had to pay out, by way of solicitor and own client costs, and what the Purchasers were able to recover from the Vendors by way of costs. This is what the Purchasers sought, as I understand it, in prayer (f) in the Defence and Counterclaim dated 11 November 1999. See also the third paragraph on page 31 of my original judgment.

4. Counsel for the Agency submits, as I understand him, that it would be unfair for the Agency to have to pay, in addition to party and party costs to the Purchasers, any of the Purchasers' solicitor and own client costs other than those which relate specifically to the Purchasers' costs in defending the Vendors' claim. The Vendors' claim was for $430,000 further deposit plus indemnities against the Agency's fees and stamp duty.

5. Logically Counsel for the Agency must be right. The Agency should not have to pay for that part of the Purchasers' solicitor and own client costs which relate to pursuing their claim against the Agency, rather than defending the Vendors' claim, because the Agency must in any event pay the Purchasers party and party costs in respect of the Purchasers' claim against it. Further prayer (f) is for the "Defendants' own costs in defending the Plaintiffs' claim in these proceedings".

6. Practically this results in a difficult situation. It will be necessary for the Purchasers' party and party costs to be taxed, and apportioned as to what relates to defending the Vendors' claim and what relates to pursuing the claim against the Agency. This is going to result in a great deal more time and expense for everyone.

7. My paragraph (3) is not a costs order but an order for damages and it has been perfected. It cannot be changed. If it could have been, a suitable solution would have been to order that the amount due under paragraph (3) be taken as 50% of the difference between the total of the Purchasers' solicitor and own client costs, as taxed, and the total of the party and party costs recoverable after taxation by them against the other parties in these proceedings.

8. The parties now tell me that they are prepared to agree to such an apportionment. All I need to do therefore is to make an order for the taxation of the Purchasers' solicitor and own client costs if they cannot be agreed, for the purpose of this apportionment.

9. The costs order itself will be amended to read :

" The costs of the original action and the counterclaim be awarded to the plaintiffs by counterclaim against the defendants by counterclaim, apportioned equally between them, to be taxed if not agreed."

10. The costs of the summonses dealt with today will be treated as part of the costs of the original action and counterclaim.