LIN HO PIN AND OTHERS v. JAMES TING-YEH YANG

HCA 730/2021

[2026] HKCFI 2967

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 730 OF 2021

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DECISION ON COSTS

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1.  The Plaintiffs are seeking to vary the costs order nisi upon my Judgment dated 12 March 2025 dismissing the Defendant’s appeal against the decision of Master Ken To dated 10 May 2024 in dismissing the Defendant’s application to strike out the Statement of Claim (“SOC”) and allowing the Plaintiff’s application for leave to amend the SOC.

2.  I ordered costs nisi be to the Plaintiffs, with certificate for two counsel, to be taxed if not agreed.

3.  The Plaintiff took out the summons dated 26 March 2025 to vary the costs nisi as follows:

“The costs of and occasioned by the Defendant’s said appeal including the hearing on 12 December 2024 be paid by the Defendant to the Plaintiffs forthwith with certificate for two counsel to be summarily assessed or alternative be taxed if not agreed and to be paid forthwith.”

4.  After the parties have put in their written submissions on the variation of the costs nisi, the Defendant have applied for leave for interlocutory appeal against my decision dated 12 March 2025.  The leave application was heard on 30 September 2025, and was dismissed thereat, and upon hearing the parties, costs of the leave application was ordered to be paid by the Defendant to the Plaintiffs forthwith, with certificate for two counsel, to be taxed if not agreed.

5.  In Midland Business Management Ltd v Lo Man Kui (No. 2) [2011] 2 HKLRD 667, Lam J (as he then was) held at §9 that:

“Under the Civil Justice Reform, the court is encouraged to order immediate payment of costs of interlocutory proceedings and if possible by way of summary assessment of costs. The objective is to discourage unnecessary and disproportionate interlocutory applications. It is recognised that the lack of immediacy of orders to pay costs ‘in the cause’ or ‘in any event’ weakens costs as a sanction against unwarranted applications or resistance.”

6.  Midland Business Management Ltd v Lo Man Kui was cited with approval by the Court of Final Appeal in Liquidator of Wing Fai Construction Co (in Compulsory Liquidation) v Yip Kwong Robert FACV No. 3 of 2011 (unrep, 24 May 2012), Ribeiro PJ stated at §§7 & 9:

“7. …The former practice was generally to order interlocutory costs to be ‘in the cause’...However, it is now generally recognized that such an approach may lead to procedural laxity and a damaging proliferation of interlocutory or satellite litigation. The first four of the underlying objectives are relevant to redressing such tendency by emphasising the need:

‘… (a) to increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the Court; (b) to ensure that a case is dealt with as expeditiously as is reasonably practicable; (c) to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings; (d) to ensure fairness between the parties...

9.     …Underlying objectives (c) and (d) militate in favour of ordering the immediate payment of the costs orders made in respect of the failed application to dismiss for want of prosecution. Accordingly, in our view, discretionary considerations are substantially in favour of such an order.”

7.  At the time of the written submissions, the leave application has not yet been heard.  The Defendant submitted that it would be unfair to the Defendant if the leave application or the appeal were successful.  The Plaintiffs submitted the two matters were non-squitur. I agree with the Plaintiff as the appeal to a judge in chambers was dismissed, there was bound to be a costs order on it.  Be that as it may, the leave application was also dismissed with a payment of costs forthwith.

8.  The ethos of the Civil Justice Reform is to streamline civil proceedings, and the immediate payment of costs upon each episode has the propensity to achieve that as payment of costs forthwith will bring home the message that payment of costs is concomitant upon losing any application.  Hence, I shall vary the costs nisi with immediate payment.

9.  As to summary assessment, it is noted that the present appeal to a judge in chambers was not a straight forward matter where costs could more or less be objectively assessed, and arguments on the facts as well as law were involved.  If summary assessment were to be undertaken, more involved examination of the work involved would have to be done.   I do not find it convenient to do a summary assessment in such a case.  Hence, the order of taxation if not agreement order is maintained.

10.  In the event, it is ordered that the costs of and occasioned by the Defendant’s appeal to the judge in chambers including the hearing on 12 December 2024 be paid by the Defendant to the Plaintiffs forthwith with certificate for two counsel, to be taxed if not agreed.