WONG EDWARD SING v. NG YAM BO AND OTHERS

DCMP 2194/2020

[2024] HKDC 1621

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO.2194 OF 2020

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BETWEEN

(by original action)

AND BETWEEN

(by counterclaim)

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DECISION

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1.  On 2 April 2024, the 1^st, 2^nd and 3^rd defendants (by original action) and plaintiffs (by counterclaim) (“the 3 Defendants”) applied for an injunction (“the Injunction”) against the plaintiff (by original action) and the 2^nd defendant (by counterclaim) (“the Registered Owners”).

2.  The Injunction against the Registered Owners is that they “shall, within 7 days upon receipt of the resumption compensation monies concerning” Section A of Lot 1322 in D.D. 52, North, N.T. (“the Lot”), “pay 52.40% of such amounts actually received from the Government into Court…pending the final determination of this Action…” etc.

Background of the procedure

3.  At the call-over hearing before this court on 11 April 2024, the 3 Defendants call for an interim-interim injunction but this was declined.

4.  I held, in summary, that the interest of the 3 Defendants were already adequately protected because the Lands Department would first have to consult the land search records and would be alerted to the interests of the 3 Defendants registered as a lis pendens. As such, the Lands Department would unlikely pay out any resumption compensation, entirely if at all, to the Registered Owners.

5.  Instead, I have given an order for the Injunction Summons to be adjourned for substantive argument and for affirmations from parties to be filed and served, with costs reserved.

6.  By a Consent Summons dated 22 May 2024, the parties agreed for the 3 Defendants to seek leave to withdraw the Injunction Summons and for costs of and occasioned by the Injunction Summons be determined by paper disposal upon written submissions by the parties.

7.  Leave for withdrawal was granted.

8.  I have now perused the written submissions by the parties and the following is my decision regarding costs.

Considerations

9.  It is trite that:

“The general rule is that a plaintiff discontinuing a claim should pay the defendant’s costs: Best Joint Investments Ltd. V Kagani Ltd. (HCA 2608/2006, [2008] HKEC 1053)…To persuade the court to depart from the general rule, the minimum an applicant has to do is to show that the discontinuance is for reasons other than an acknowledgement of defeat or likely defeat. The most direct way is to show that the application would have succeeded if the application had been proceeded with: UNI-Creation Investments Ltd. V Secretary for Justice (HCMP 2166/2015. [2017] HKEC 1345)…” (Hong Kong Civil Procedure 2024 at paragraph 21/6/1)

10.  Mr. Vincent Lung, counsel for the 3 Defendants (by original action), in his skeleton argument, explained why the Injunction Summons was “reasonably justified”: e.g. they were “concerned with possible dissipation of the compensation” and that the court’s refusal to grant an interim-interim injunction was based upon “its confidence in the Lands Department to do its job properly” etc.

11.  However, the test is not whether the application was “reasonably justified” to be taken out in the first place, but that “the discontinuance is for reasons other than an acknowledgement of defeat or likely defeat”.

12.  Thus, it is for Mr. Lung to show reasonably acceptable alternative reasons for the withdrawal and that, but for this withdrawal, the 3 Defendants (by original action) would likely be successful in obtaining the Injunction.

13.  Mr. Lung failed to do so either in his skeleton argument or reply submissions.

Order

14.  As such, I see no reason to depart from the general rule to order that the costs of and occasioned by the Injunction Summons be paid by the 3 Defendants to the Registered Owners, to be taxed if not agreed, with respective certificate for counsel granted.

15.  I note that Mr. Sunny Chan, counsel for the plaintiff (original action) and Mr. Michael MH Leung, counsel for the 2^nd defendant (by counterclaim), are asking for costs on an indemnity basis. Given that the 3 Defendants (by original action), did seek to withdraw the Injunction Summons relatively early, I do not agree that the circumstances of this application (including the conduct of the 3 Defendants (by original action)) warrant that and I will only award costs to be taxed on a party-and-party basis.

16.  I will further order that the plaintiff (by original action) and the 2^nd defendant (by counterclaim) shall lodge and serve their respective summary bill of costs within 21 days of this Decision and for the 3 Defendants (by original action) to lodge and serve their summary list of objections 21 days thereafter. The court will assess costs summarily by paper disposal.