KAN WAI CHUNG AND OTHERS v. HAU WUN FAI AND OTHERS

HCA 811/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 811 OF 2010

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BETWEEN

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DECISION ON COSTS

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1.  This Decision on Costs should be read together with the Decision that I handed down on 6 February 2012.

2.  In that Decision, I set aside the default judgment that the Tings obtained on 30 October 2010, allowed the Solicitors’ appeal against the master’s decision dated 11 October 2010, ordered the statement of claim be struck out and dismissed the Tings’ claims.  I further made an order nisi that the Tings do pay the Solicitors costs of the action including the costs of their appeal and the setting aside application and the costs before the master below with a certificate for two counsel.

3.  The parties now apply to vary the costs order nisi.

4.  The Tings say there should be no order as to costs for the appeal.  They argue that the Solicitors had falsely misrepresented that they were the solicitors acting for them in the sale and purchase agreements for the Transactions, thereby abusing their position as practicing solicitors and officers of the court.  Their wrongful conduct and professional mal‑practice should be disapproved by the court.  So there should be no order as to costs.

5.  This argument is entirely misconceived.  Those agreements were executed pursuant to the Order, which authorized the Developers to complete the Transactions.  Even if the Solicitors represented that they were acting for the Tings without their knowledge or consent, it can hardly amount to any wrongful conduct as contended.  It has no bearing on the question of costs at all. 

6.  The Tings next argue that the costs order of the master should not be disturbed as the default judgment was a regular one.  This argument is again misconceived.  My order nisi dealt with the costs of the hearing before the master on 11 October 2010 when he dismissed the Solicitors’ striking out application.  Now that I have allowed the appeal, the Solicitors should have the costs of the hearing before the master. 

7.  The Tings’ variation is refused.

8.  The Solicitors submit that the Tings should pay them indemnity costs.  By two letters dated 24 and 30 June 2010, the Solicitors had already informed the Tings that their claim was liable to be struck out.  The Tings were invited to discontinue the action.  They did not and persisted with the proceedings in the way as they did.  I agree with the Solicitors that the Tings had conducted themselves in a vexatious manner.  They should be penalized by way of indemnity costs.  I allow the variation sought by them.

9.  For the above reasons, I vary the costs order nisi to the extent that all the costs are to be taxed on an indemnity basis if not agreed.

10.  The costs of the variations are to be borne by the Tings as well.  Such costs are likewise to be taxed on an indemnity basis if not agreed.