HANDY CONTRACTOR CO LTD v. FOO SIANG KIEW

DCCJ 4449/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4449 OF 2006

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DECISION

1. This is an application of the Plaintiff to vary the Costs Order nisi imposed by this Court on 6 July 2007.

2. By a summons dated 21 March 2007, the Defendant made 2 applications, namely, an order that the default judgment be set aside and an order that the Statement of Claim in DCCJ 4449 of 2006 (Action 4449) be struck out.

3. In the judgment dated 6 July 2007, the default judgment was set aside but the application to strike out the Statement of Claim in Action 4449 was dismissed. A Costs Order nisi was imposed whereby the Plaintiff was asked to shoulder the costs of the Defendant, to be taxed if not agreed, with certificate for Counsel. On 18 July 2007, the Plaintiff made an application to vary the Costs Order Nisi. On 5 September 2007, the Defendant took out a summons to consolidate Action 4449 and DCCJ 3695 of 2006 (Action 3695).

4. The issue in the present summons is whether the Plaintiff should be ordered to shoulder the whole costs of the previous application as the Defendant was successful only on one of the applications that they made.

Decisions

5. It is not in dispute that costs mattes are in the discretion of the court and costs should follow the event. Where the successful party raises issues or makes allegations improperly or unnecessarily, the court may not only deprive him of his costs but may order him to pay the whole or part of the unsuccessful party’s costs.[1]

6. From the chronology of events, it was the Plaintiff who had taken the initiative to take out the default judgment without further liaising with the Defendant after a series of discussions between the parties. In my view, the preliminary matters raised in the summons could be sorted out without taking the matters to court. It was admitted by the Defendant that it was their tactical move to apply to strike out the Statement of Claim in Action 4449. Although it was difficult to split the time that was required to argue on the two applications made by the Defendant in the summons, I accept that the Defendant’s tactical move to apply for striking out the Statement of Claim in Action 4449 was made unnecessarily.

Order

7. In the circumstances, after considering submissions made by Counsel of both parties and the relevant authorities so submitted, I would make the costs orders as follows:

1.	The Defendant is to have 2/3 of the costs of the inter parte application, with certificate for counsel, relating to Action 4449 which was heard on 25 May 2007, and the costs are to be taxed if not agreed with .
2.	There is no order as to the costs in this application.
3.	The Costs Order made on 25 May 2007 is hereby made absolute.