LEE YIN KEUNG JACKY v. LILY FENN & PARTNERS (a firm)

HCMP 63/2022

[2026] HKCFI 4536

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 63 OF 2022

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DECISION ON COST

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Introduction and Background

1.  By a Summons dated 16 March 2026 (“Variation Summons”), the Defendant (“D”) seeks to vary the costs order nisi at §23 (“Costs Order Nisi”) of this court’s decision dated 9 March 2026 ([2025] HKCFI 1303 (“the Decision”)) in respect of its Summons dated 16 September 2025 (“the Appeal Summons”) seeking: (1) a direction whether the decision and order of this court dated 3 September 2025 is a decision or order determining in a summary way the substantive rights to the parties of the present proceedings as per O.59, r.21(1)(a) and (3) of the Rules of the High Court, Cap. 4A (“RHC”) (“1^st Issue”); and (2) if not, leave be granted to D to appeal that decision to the Court of Appeal (“the 2^nd Issue”).

2.  The Costs Order Nisi is for 50% of the costs of the Appeal Summons be paid by D to P to be taxed if not agreed and 50% of the costs of the Appeal Summons be in the cause of the appeal, with certificate for two counsel.

3.  By the Variation Summons, D seeks to vary the Costs Order Nisi to costs of the Appeal Summons be in the cause of the appeal, with certificate for two counsel or alternatively, no order as to costs.

4.  Directions were given for the lodging of written submissions and for the Variation Summons be disposed of on paper which I now do.

5.  Having considered the written submissions of the parties, I will allow a variation of the Costs Order Nisi to order that the costs of the Appeal Summons be in the cause of the appeal with certificate for two counsel.

6.  Whilst initially without the benefit of any submissions on costs, I did consider that given of the two matters raised by the Appeal Summons, D had failed on the 1^st Issue (I had rejected D’s argument that no leave to appeal was required) but succeeded in the 2^nd Issue (I granted leave to appeal), the Costs Order Nisi was a just one, on further reflection, I agree with D’s submissions that where the one and only purpose or object of the Appeal Summons was to take up its appeal to the Court of Appeal, ultimately D should not be treated as having failed but in so far as the application for leave to appeal is concerned did succeed. To order costs of the Appeal Summons be in the cause of the appeal would better accord with the reality and justice of this case.

7.  Even though P submitted that the 1^st Issue was hotly contested, given that O.59, r.21(3) of RHC provides a direction from the judge may be sought on whether a judgment or order is one that does not require leave to appeal and the arguments made by D were not wholly unmeritorious even though ultimately, I did not agree with them, it was reasonable for D to raise the 1^st Issue and pursue them in its written submissions in the manner it did which does not justify the order requiring it to pay 50% of the costs of the Appeal Summons.

8.  As for the costs of this application, I see no reason why this should not follow the event. P should pay to D the costs of the Variation Summons. If such costs are not agreed, D should lodge a Statement of Costs limited to 3 pages within 14 days from the handing down of this decision, P should lodge a List of Objections limited to 2 pages within 7 days thereafter and there shall be a summary assessment on paper.