HUMMINGBIRD MUSIC LTD v. DINO ACCONCI AND ANOTHER

HCA836/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 836 OF 2007

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R U L I N G

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1.  This is all most unfortunate because I am now left with no alternative but to make an order for costs between the parties.  The history of it can be taken very shortly.  The plaintiff’s solicitors wrote on 3 January this year indicating their displeasure that no payment in had been made, in fact, the amount had been ascertained in the accounts which were produced on 21 December of last year.  On 7 January the defendants’ solicitors wrote to say that they expected to be able to make the payment-in in the course of that week.  In fact, on 9 January they received a cheque from their clients but on paper there was a very long silence between 9 January and 21 January when there was a letter from the plaintiff’s solicitors to the effect that they were about to issue their summons. 

2.  If one just backtracks briefly, that cheque was negotiated, and there is evidence from the bank to that effect, on 18 January but the defendants’ solicitors were not made aware of that by their bank until the 23rd.  On 24 January, at 4.15 pm, the summons was issued but in fact the payment-in had been made that day at about midday but notice had not been received of that until about half past 4 on 24 January by the plaintiff’s solicitors, they already having issued their summons.

3.  The matter then was left in this way; that the plaintiff would be satisfied if the defendants paid them the costs of the summons, which really would only be a matter of a few hundred dollars in my experience of these matters.  The defendants solicitors were not prepared to do that, they said no order for costs would be the correct order to make.  In the affirmation evidence, Mr Szeto, who is the defendants’ solicitor, has alleged an agreement with Mr Victor Chan, who is the solicitor looking after the plaintiff’s case, made on the telephone shortly after 9 January that the matter was well in hand and Mr Szeto says that he obtained Mr Victor Chan’s agreement that Mr Chan would lay off issuing the summons as he had been reassured that Mr Szeto had received a cheque which he was in the course of negotiating.  But that is not accepted by Mr Chan.  There is no attendance note confirming the agreement nor of the telephone call.  Mistakes can happen.  I am simply in no position to resolve this sort of dispute between the solicitors on paper and so I am left to deal with it on the material which I have just referred to and in the circumstances I am afraid it is now unavoidable that the defendants will have to pay the costs of this summons.  They, on the face of things, had not complied with the request that the matter should be dealt with urgently; they, on paper, were not apparently informing the plaintiff’s solicitors of what was going on, although there is this question of an oral agreement, which is disputed and, in such circumstances I am really left with no alternative but to deal with it in this way.  So there will be no order on the summons itself because of course payment has now been made, save that the defendants are to pay the plaintiff’s costs on the summons on a party and party basis.  Shall I make a gross assessment of this now to save taxation?

(Discussion re costs)

4.  I will make that order. 

(Discussion re certificate for counsel)

5.  Thank you very much.  $5,000.  This is a case which could have been dealt with by solicitors; there is no need on such a small matter for counsel to be instructed.  Assessed at $5,000, which is more than generous.