MAGENTA & CO LTD AND ANOTHER v. KOO YUNG SHOU

HCA2047/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2047 OF 2008

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D E C I S I O N

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1. On 30 January 2009 Master Hui gave leave to the 1^st and 2^nd plaintiffs to serve a writ of summons in this action out of the jurisdiction in Taiwan on the defendant.

2. By his amended summons dated 24 March 2009 the defendant applied to set aside the service of the writ on him in Taiwan. 

3. On 10 July 2009 Master S Kwang dismissed the application.

4. On 30 October 2009 I allowed the defendant’s appeal and set aside the order of Master S. Kwang.  I also discharged the ex parte order of Master Hui.  I made an order nisi that the costs of the application before Master S. Kwang by the defendant’s amended summons filed on 7 July 2009 and the costs of the appeal be costs to the defendant to be taxed and paid by the plaintiffs. 

5. This is the defendant’s application to vary the costs order nisi.  The defendant seeks an order that the plaintiffs should pay the defendant the costs of the amended summons filed on 17 July 2009, the costs of the appeal including the costs of the application to vary on an indemnity basis and further, that the costs should be assessed by way of a summary assessment of costs.

6. In my judgment dated 30 October 2009 I allowed the defendant’s appeal on both of the grounds relied on namely, that the plaintiffs failed to establish a good arguable case against the defendant and that the plaintiffs were guilty of material non-disclosure in their ex parte application before Master Hui.

7. It is plain that the emails referred to at paragraph 37 of my judgment were not disclosed or brought to the Court’s attention by the plaintiffs or their legal representatives at the ex parte hearing before Master Hui.  They should have been disclosed or brought to the Court’s attention.  No explanation has ever been given for this omission.

8. I am satisfied that this is a proper case to award costs to the defendant on an indemnity basis and I so order.  It is also appropriate, in my view, to summarily assess the costs. 

9. The defendant’s statement of costs has been supplied to the plaintiffs on 1 December 2009.  There has been no response by the plaintiffs to the defendant’s statement of costs. 

10. The summary assessment is not a mini taxation of costs.  The Court approaches the matter on a broad-brush basis. 

11. Having perused the statement of costs it seems to me that there are certain items in C1, D2 and D3 where, in my view, there has been an excessive amount of time spent.  The total sum claimed in the statement of costs is $359,565.  In addition Mr Lo asks for a further $8,000 for this application and preparation for this application. 

12. It seems to me that approaching the matter on a broad-brush basis I would assess the defendant’s costs including the costs for this application in the total sum of $270,000.  I make an order that the plaintiffs shall pay the costs which I have summarily assessed at $270,000 to the defendant within 14 days from today.