LEUNG LAI YEE v. YUE KEUNG FINANCE & INVESTMENTS LTD

HCMP 1370/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1370 OF 2014

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D E C I S I O N

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1.  This is the plaintiff’s application for leave to discontinue a vendor and purchaser summons. The dispute originally arose out of disagreement on certain requisitions on title.

2.  The plaintiff was the intended purchaser.  After the issuance of the originating summons, the vendor’s solicitors sent a five-days working notice to annul the sale.  Consequently the deposits were returned to the plaintiff and the issue for this originating summons became academic.

3.  There was suggestion of taking out a consent summons for discontinuing these proceedings and vacating today’s hearing, but the defendant apparently ignored it.

4.  The plaintiff seeks costs against the defendant in respect of costs of and incidental to these proceedings, including the costs of this application on the grounds that the defendant’s conduct has been unreasonable. 

5.  The plaintiff argues that the court has a wide jurisdiction under Order 21, rule 3, to make cost orders; I was referred to paragraph 21/5/12 of the Hong Kong Civil Procedure 2014.  Nevertheless, paragraph 62/10/11 of the Civil Procedure 2014 stated that:

“It has been held that there is no jurisdiction to order the other party to pay costs to a party discontinuing or withdrawing (Lambton v Parkinson (1887) 35 WR 545; Musman v Boret (1892) 40 WR 352) but in special circumstances and where leave is required each may be ordered to pay his own.”

6.  The plaintiff also referred me to Duddle v Simpson, but this is not a case on discontinuance or withdrawal of action; it was a determination on the issue of costs after a contested hearing.  The case is of no assistance.

7.  After being referred to paragraph 62/10/11 of the Hong Kong Civil Procedure 2014, solicitors for the plaintiff fairly conceded that he should only ask for each party to bear his or her own costs in these proceedings.  He, however, argued that the defendant should bear the costs of this application.  He argued that by a letter dated 27 June 2014 from the plaintiff’s solicitors to the defendant’s solicitors, the plaintiff asked the defendant to pay for costs of and incidental to these proceedings so that a consent summons can be filed.  The defendant did not reply at all to this letter.  No counter offer was proposed.  The plaintiff waited until 4 July 2014 to issue the present summons for discontinuance.  He argued that the defendant’s conduct was unreasonable.

8.  Solicitors for the defendant argued that they took the view that the plaintiff had no cause of action after the annulment of the sale and should have voluntarily discontinued these proceedings without imposing harsh orders of costs against his client.  He argued that there is no obligation to make counter proposals.  If the summons seeks an unreasonable order of costs, his client is entitled to oppose it.

9.  I agree with solicitors for the defendant.  It is not for an applicant to make improper or unrealistic prayer in a summons, hoping that his opponent would come up with a counter proposal. If an improper prayer is sought and at the end of the day the court refuses to make the order, the applicant has to bear the cost consequence.

10.  Accordingly, I order that the plaintiff do have leave to discontinue these proceedings.  I make no order of costs in respect of these proceedings, save that I order the plaintiff to pay the defendant’s costs of and occasioned by this application.

(Discussion re costs)

11.  I allow $6,000 on the basis of one and a half hours.