WONG CHUN CHOI also known as WONG CHEUN CHOI AND OTHERS v. MAN TAK SUM also known as MAN SUM

HCMP 440/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 440OF 2017

(ON AN INTENDED APPEAL FROM DCCJ NO 3902 of 2013)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an application for leave to appeal against the decision of Deputy Judge S H Lee on the costs of a summons taken out by the Defendant on 2 June 2016. The purpose of the summons was to ask the judge to settle the terms of the lease to be executed between the parties pursuant to a settlement embodied in a consent order of 24 June 2014. Shortly before the hearing, the Defendant issued another summons on 25 November 2016 seeking to amend the proposed terms of the lease. The judge ordered that each party to bear their own costs, except that with regard to the amendment summons the judge ordered the Defendant to bear the costs of the amendment summons (assessed at $6,500) and the Plaintiffs to bear the costs of the hearing of such amendment summons (assessed at $3,880).

2.  The Defendant wished to appeal against the costs order.  The judge refused to grant leave to appeal.

3.  The Defendant renewed the application for leave before us.

4.  Having heard the parties, we decide we should refuse leave.

5.  As it has been said repeatedly, costs are very much a matter for the judge and the Court of Appeal will be circumspect in intervening with the exercise of that discretion: Ho Shu Kwong v Chiang Chun Yuan [2002] 3 HKLRD 419; Hung Fung Enterprises Holdings Ltd v Agricultural Bank of China [2012] 3 HKLRD 679; Poon Ching Man v Lam Hoi Pun [2016] 3 HKLRD 815.

6.  The dispute about the interlocutory or final nature of the proceedings has no significance.  Even if the proceedings were final in nature, costs following event is only a starting point.  The judge gave reason why he did not give costs to the Defendant.  The crucial issue is whether such reasons could justify the costs order in terms of not giving costs to the Defendant. 

7.  The judge took the view that the Defendant was partly to be responsible for having the matter brought before the court.  On that basis, he made the costs order he did.  We are of the view that the judge was quite entitled to take such a view.

8.  The difference between the parties which led to the summons of 2 June 2016 was the clause relating to the legality of the structure on the land.  In the end, the judge found that the respective drafts put forward by the parties were not correct.  He also found that the version put forward by the Defendant was controversial.  Having read the correspondence between the solicitors and the relevant drafts, we agree with such assessment.

9.  It was at a rather late stage that the Defendant sought to reduce the controversy by the amendment summons.  The judge was entitled to take that into account.

10.  The judge also considered the Plaintiffs to be partly responsible. Hence, he did not order costs against the Defendant.  He only ordered each party to bear his/their own costs. In the circumstances, it seems to us to be a fair order, at least an order falling within the range of reasonable options which the judge was entitled to make.

11.  There is no prospect of success in the intended appeal.  It would only be a wasteful and disproportionate exercise. 

12.  We dismiss the summons of 27 February 2017.