DONALD KOO HOI YAN v. EMMANUEL CHU CHEE KAO AND OTHERS

HCMP3533/1995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.3533 OF 1995

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R U L I N G

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1. I am now required to give a ruling as to the costs of this matter having regard to my judgment in it dated 23 January last. Having dismissed the Originating Summons in its entirety, I made an order nisi that the defendants should get their costs following the usual principle that costs should follow the event save, where unusual circumstances may indicate a different course.

2. Before me today Mr Manzoni on behalf of the plaintiff in a series of moderately put and therefore persuasive submissions has sought to demonstrate that this case has a number of unusual circumstances and features which should dictate a different outcome on costs.

3. The starting point has to be the ultimate result which is that the plaintiff has failed and therefore that the defendants have succeeded. Where I was put to it to decide the issues raised in the summons, I have decided all of those issues in the defendants' favour, including a finding of fact against the plaintiff as to the level of his knowledge in respect of the Dollarwell property investment. Even accepting all of these matters Mr Manzoni submits that had the plaintiff not brought this Originating Summons, being a trust allegation in its form, he would not have secured the financial information that went with the action and which afterall was what he was requiring from the defendants and which he was not getting. Ultimately and late in the day, it was produced, some of it not until the second day of the trial. This he says has served to vindicate the plaintiff's decision to litigate which therefore ought to have a bearing on the costs of the summons. This matter, of course, forms but a part of what I dare say has been unpleasant and costly litigation between the parties over the past ten years and in the heat of battle, transparency and cooperation have fallen victim.

4. I am satisfied that had a calmer and more practical approach been adopted by the parties, more financial information would and should have been made available and made available sooner to the plaintiff which perhaps might have avoided a trial. In the event the defendants opted, as they were entitled to, for the legal route by seeking to strike out the summons as an abuse of process in which they were singularly unsuccessful. This has probably encouraged the plaintiff to think that he was on something of a winner so that he then pressed on. There is no doubt that through the process of discovery in the litigation itself, he was able to obtain further information of which he had not been previously aware. This is said to provide the basis for some other form of order for costs.

5. I do have some sympathy for that submission but this can only form a part of the larger picture which is that the defendants had been put to it, by the bringing of the Originating Summons, to defend what for solicitors are serious allegations that they were trustees for the plaintiff with grievous consequences in terms of potential findings of a breach of that trust and expensive and time-consuming enquiries and the taking of accounts by the court. This, in the end, has been pursued to judgment by the plaintiff in which he has failed.

6. I am bound to say that my mind has wavered in the course of the argument as to whether some allowance should be made for the plaintiff, certainly during the pre-trial period which did produce financial information which had hitherto not been forthcoming, but ultimately I have decided that one needs to approach this from the fundamental position that the plaintiff has selected a trust action as the vehicle by which he should be entitled to the relief that he has sought. This is what the defendants have had to contend with and to defend. They have done so successfully and they should not, in my judgment, now be deprived of any part of their costs. Costs therefore should follow the event in this matter and that is my order.