YEUNG HAU MING, THE ADMINISTRATRIX OF THE ESTATE OF YEUNG TSANG KWAN, DECEASED v. YEUNG WAN KAM AND OTHERS

HCA 324/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 324 OF 2010

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DECISION ON COSTS

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The application

1.  The dispute between the plaintiff and the defendants is on costs for the plaintiff’s summons for specific discovery dated 22 November 2013 scheduled to be heard on 11 April 2014.  The plaintiff’s summons will be, by consent, vacated because the 3^rd defendant had disclosed those documents in her 2^nd affirmation opposing the plaintiff’s application. The plaintiff agreed to vacate the hearing on 11 April 2014 but argued that the costs for the application, including the affirmations, be to the plaintiff.  The defendants disagreed.  Hence this hearing.  Mr. K. Chan, solicitor acts for the plaintiff.  Mr Cheng, solicitor acts for the 1^st to 3^rd defendants.

Discussion

2.  The plaintiff’s claim against the defendants is over the estate of her deceased father.  The defendants are her brother, nephew and sister-in-law respectively.  The plaintiff’s application for discovery of the documents against the 3^rd defendant is the accounts and documents showing the deceased’s money before his death.  The plaintiff asked for those documents because she said that the 3^rd defendant had misappropriated her deceased father’s money and used it to purchase one of the deceased’s property, which should form part of the decease’s estate instead.

3.  The defendants object paying the plaintiff’s costs for the application on the ground that they did not agree to provide those documents because the documents are private and confidential; such information has little probative value and the costs are disproportionate to the value of the information sought.[1]  The defendants further say that the hearing date in April is after the date for the 2^nd Case Management Conference which is on 12 March 2014.  In order to avoid delay, the 3^rd defendant voluntarily made discovery despite those grounds of objections.[2]

4.  The defendants have not disputed that because of the 3^rd defendant’s disclosure of these documents in her 2^nd affirmation that has made the plaintiff’s application unnecessary.

5.  The defendants seek to argue those grounds that they have raised to oppose the plaintiff’s application for discovery for the hearing today.

6.  It is trite law that the question of costs is a matter of the court’s discretion, having regard to the relevant legal principles.  Order 62 rule 5 provides the relevant factors for the court’s consideration, of which I cite the relevant parts:

"5. Special matters to be taken into account in exercising discretion (O. 62, r. 5)

(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- (L.N. 152 of 2008)

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

(L.N. 152 of 2008)

(e) the conduct of all the parties; (L.N. 152 of 2008)

(f) whether a party has succeeded on part of his case, even if he has not been wholly successful; and (L.N. 152 of 2008)

                               "

7.  As the plaintiff’s summons has been dealt with by consent, the Court will not consider the merit of the application and the reasons for its opposition.

8.  The plaintiff had made it quite clear that she would argue costs for her application. Since the defendants do not dispute that because of 3^rd defendant’s 2^nd affirmation disclosing the documents sought by the plaintiff, the plaintiff agreed to vacate the hearing of her summons.  It is therefore clear that the plaintiff has succeeded in her request for the documents.

The order

9.  By virtue of Order 62 rule 5(1)(f), the plaintiff should have the costs of her application.  I so order.

10.  Mr. Chan, the solicitor for the plaintiff has not prepared the schedule of costs in accordance with paragraph 7 of Practice Direction 14.3.  He has given no explanation for his failure to do so.  He simply asks this Court to adjourn the matter to the 2^nd Case Management Conference in March.  This Court refuses Mr. Chan’s proposal because it will add more burden on the Case Management Conference.  The assessment of costs should be dealt with at the end of this hearing, particularly the costs for hearing today.  Paragraph 15 of the Practice Direction provides that the Court, in assessing the costs, should take this factor into account.

11.  The matter is therefore adjourned for 5 minutes for Mr. Chan to prepare the schedule of costs and possible agreement on the costs.  There being no agreement on the costs, the costs are assessed.  Mr. Chan’s schedule of costs asks for $49,000, including 30 minutes of $2,000 for today’s hearing.

12.  It is perhaps high time for members of the legal profession to pay attention to the Practice Directions.  Otherwise, the proceedings will be disturbed unnecessarily and their costs will be disallowed accordingly.

13.  Because of Mr. Chan’s failure to adduce the schedule of costs without explanation, in violation of paragraph 7 of the Practice Direction 14.3, the costs for today’s hearing are disallowed.

14.  The plaintiff’s costs including the costs of today’s hearing be assessed on a broad-brush approach under Order 62 rule 9A at $25,000 which is to be paid by the defendants within 14 days from the date hereof.

15.  I shall now make an order for the defendants’ summons dated 7 February 2014 in terms as follows:

a. As per paragraph 1 and paragraph 2; and

b. The hearing on 11 April 2014 be vacated, with costs as per paragraph 14 above.