SHING YAT KWONG v. LI MAN HONG AND ANOTHER

DCMP 3218/2018

[2023] HKDC 530

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3218 OF 2018

--------------------------------

--------------------------------

--------------------------------

----------------------

DECISION

----------------------

1.  This is the application by the 1^st and 2^nd Defendants (“Ds”) to vary the costs order nisi. On 8 February 2023, the Court handed down the Judgment granting various reliefs sought by the Plaintiff, dismissed Ds’ counterclaim, and made a costs order nisi that Ds do pay to the Plaintiff 80% of the costs of the action. By summons dated 21/2/2023, Ds apply to vary the costs order nisi to the followings:

(1)  There be no order as to costs and each party bears its own costs, including Ds’ counterclaim and any costs reserved;

(2)  Alternatively, Ds do pay to the Plaintiff 50% of the costs of the action, including Ds’ counterclaim and any costs reserved, with certificate for counsel to be taxed if not agreed.

The Law

2.  There is no dispute between the parties on the law. The court has wide discretion as to costs. Costs should generally follow the event unless when it appears to the Court that in the circumstances of the case, some other order should be made as to the whole or any part of the costs (O 62 r 3(2) of RDC, Cap 336).

3.  O 62 r 5 of RDC states:-

“(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account —

(aa) the underlying objectives set out in Order 1A, rule 1;

……

(d) any written offer which is expressed to be “without prejudice save as to costs” and which relates to any issue in the proceedings…

(e) the conduct of all the parties;

(f) whether a party has succeeded on part of his case, even if he has not been wholly successful;

……

(2) For the purpose of paragraph (1)(e), the conduct of the parties includes—

(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d) conduct before, as well as during, the proceedings.”

Ds’ submission

4.  Ds submit that in addition to the matters identified at paragraph 78 of the Judgment, there are other matters which should also be taken into account on the issue of costs which can be briefly summarized as follows:

(1)  The Plaintiff’s Re-Amended Statement of Claim filed on 31/3/2021 was not satisfactory and the relief sought was defective/confusing and that it had to be amended at the conclusion of the evidence by adding the alternative claim that the encroached area was about 8.9 sq.m;

(2)  The "start date” for the alleged trespassing was unclear in the Plaintiff’s pleaded case and that it was only at the closing submission did the Plaintiff confirm it to be May 2014;

(3)  The Plaintiff, by amendment made at the conclusion of the evidence, asked for a new form of mandatory injunction, namely, “mandatory injunction requiring the 1^st and 2^nd Defendant to demolish all structures….., failing which the Plaintiff be at liberty to demolish all the said structures…..” and the Plaintiff failed to obtain the second part of the injunction;

(4)  The matters set out in paragraph 78 of the Judgment should attract further reduction on costs;

(5)  Ds made a Calderbank Offer before trial that Ds would concede on liability on the basis that each party should bear its own costs which the Plaintiff did not accept.

5.  Except Ds’ Calderbank Offer, the Court was aware of all those matters raised by Ds herein which had been considered and taken into account when the Court was considering the costs issue.

6.  In respect of the encroachment, Ds’ primary defence was that there was no encroachment, be it 10.1 sq.m or 8.9 sq.m. As to the actual area of encroachment, the evidence came from the Single Joint Expert (“SJE”). Although, the Plaintiff only formally pleaded his alternative claim at the conclusion of the evidence, relying on the evidence of the SJE, the SJE had already stated in his report and explained why he reduced the measurement of 10.1 sq.m to that of 8.9 sq.m to which there was no contrary evidence. I do not agree that much time had been taken up on this late amendment.

7.  As for the “start date” for the alleged trespassing, the Plaintiff’s evidence was that the Papaya Tree still existed and located in between Ds’ Fence and the Plaintiff’s Parallel Fence on 24 February 2014; when he visited the place again on 21 April 2014, the Papaya Tree was removed and the Plaintiff’s Parallel Fence was relocated a few feet in towards the Plaintiff’s lot; he returned to the place on 26 April 2014 and saw the construction of the Wall Extension by Ds’ worker. Although, the Plaintiff did not know the exact date when the trespassing started, it must have happened sometime between 24 February 2014 and late April 2014. For the purpose of claiming mesne profit, it would be reasonable for the Plaintiff to pick a start date from 1 May 2014 in the circumstances. The Plaintiff was only claiming a nominal sum which should not and did not entail much argument. I do not see there was much time being taken up on this issue.

8.  In respect of the mandatory injunction, it was a matter of discretion for the Court to decide the extent of such order in the circumstances of the case. I do not agree that much time had been taken up on this issue either.

9.  Consequent upon Ds’ application to vary the costs order nisi, I have reconsidered those matters set out in paragraph 78 of the Judgment and the submissions made by Ds’ counsel at this hearing which I do not intend to recite herein. I do not agree that there should be further deduction on costs.

10.  In respect of Ds’ Calderbank Offer, it is quite clear that the Plaintiff did better than the offer made by Ds. It was reasonable for the Plaintiff not to accept the said Offer.

11.  In the circumstances, I am not minded to vary the costs order nisi. Ds’ summons is dismissed with costs to the Plaintiff with certificate for counsel to be taxed if not agreed.