TIGER RESORT ASIA LTD v. KAZUO OKADA AND OTHERS

HCA 3017/2017

[2021] HKCFI 2094

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3017 OF 2017

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DECISION ON COSTS

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1.  I refer to my Decision of 22 April 2021. In §51 thereof, I make a costs order nisi in terms of §2 of the Summons. P seeks a variation thereof, as follows:

“ Costs of this application (including the application for variation of costs order nisi) be paid by the 1^st Defendant to the Plaintiff, to be taxed forthwith on an indemnity basis if not agreed, with a certificate for two counsel.” (Proposed variations italicised)

2.  I have considered the cases cited to me, which include Town Planning Board v Society for Protection of the Harbour Ltd (No 2) (2004) 7 HKCFAR 114.

3.  P relies on the following matters as constituting special or unusual features justifying indemnity costs:

 (a)  the claim and injunction granted being proprietary in nature;

 (b)  that they are instituted and sought to vindicate P’s proprietary rights;

 (c)  that D1 was a trustee of P;

 (d)  that D1 has described the quantum of P’s claim as being “pocket change”;

 (e)  that this Court has found that:

 (i)  D1’s non‑compliance of the Disclosure Order has been clear and flagrant;

 (ii)  the explanations given by D1 for the substantial delay of almost 2 years and 4 months in complying with the Disclosure Order as being plainly incredible and entirely unbelievable;

 (iii)  D1’s alleged poor health is nothing but an excuse;

 (iv)  D1 had made no effort to contact Teramoto Seiichiro to try to obtain the information; and

 (v)  D1’s conduct has given rise to risk of injustice by reason of the difficulty of enforcing a judgment.

4.  In opposition, Messrs Seyfarth Shaw highlights the discretionary nature of the matter, that P has failed to demonstrate unusual features, in that those features relied upon by P have formed the basis of the unless order, so that a fair result has been achieved, and D1 should therefore not be penalized further by indemnity costs.

5.  I accept the submissions made on behalf of P that those matters summarized above constitute special and unusual features.  D1 failed to comply with the Disclosure Order as ordered, necessitating P to make the application for an unless order.  When faced with that application which could have been avoided, D1 persisted in his non‑compliance and put forward excuses which this Court has all rejected.  I agree with P that indemnity costs are plainly appropriate.  The fact that those same features forms part of the basis for the making of the unless order in my view makes absolutely no difference.

6.  D1 himself has engaged a senior counsel with a junior.  That, together with the nature of the case and the amount involves, in my view justify a certificate for two counsel.

7.  In all, I grant P’s application.  The costs order nisi previously made is varied to one as reproduced in §1 above.