CHEUNG MEI LING RONI AND ANOTHER v. DR LI WANG PONG FRANKLIN, also known as FRANKLIN WANG PONG LI

HCPI 180/2019

[2022] HKCFI 1581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 180 OF 2019

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DECISION ON COSTS

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1.  By my Decision dated 11 March 2022 ([2022] HKCFI 716)  (“Decision”), I allow the defendant’s application for a conditional discharge of the Mareva injunction obtained by the plaintiffs against him.

2.  In the Decision, I made a costs order nisi in favour of the defendant in the following terms:

“57. I see no reason why costs should not follow the event. I order that the costs of D’s Summons (including all costs reserved, if any)  be paid by the plaintiffs to the defendant, such costs are to be taxed if not agreed with a certificate for 2 counsel.

58.  The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.”

3.  By a letter to the court dated 13 April 2022 (the “Letter”), the defendant’s solicitors invited the court to “confirm that the costs order contained in the Decision be a ‘forthwith’ order so that such costs may be calculated and dealt with as soon as possible and without the need to wait until the whole set of proceedings be concluded …”.

4.  I gave directions for the Letter to be treated as the defendant’s application to vary the costs order nisi (the “Application”)  and for the Application to be determined on paper.

5.  The Application is opposed by the plaintiffs on the grounds that (i) the costs order nisi made in the Decision has become absolute on 25 March 2022; and (ii)  the defendant procured the costs order to be sealed on 8 April 2022 without reserving any power to vary, which has rendered the court functus officio.

6.  A similar situation was recently considered in Universal Entertainment Corporation v Kazuo Okada [2021] HKCFI 3432.  In that case, inter alia, on 18 September 2020 the court ordered the plaintiffs to pay the defendant’s costs on a failed application for leave to appeal, which order was sealed on 18 January 2021.  By summons dated 26 March 2021, the defendant sought a variation of the costs order to provide for an immediate taxation.

7.  Coleman J refused to vary the order and held that the court no longer had jurisdiction or was functus officio:

“24. Once an order has been perfected by being sealed by the Court, there is no jurisdiction for a change of mind thereafter, unless the Court has an express power to vary its own previous order. The proper route to seek to vary a sealed order is by way of appeal. The September Costs order was sealed and perfected on 18 January 2020 [sic], and it contains no express power for future variation.”

8.  Moreover, in respect of the defendant’s attempt to vary the costs order by seeking clarification of its terms, Coleman J also rejected this approach holding that:

“33. … Had it been considered that there was a failure to have made clear the intention to be reflected in the order, there was plenty of time to have made an application before it was sealed and perfected”.

9.  By parity of reasoning, the defendant’s Application to vary the costs order must be dismissed.

10.  Further still, in my view, the defendant has not provided any good reason for the delay in making the Application, thereby allowing the costs order nisi to become absolute on 25 March 2022.

11.  In his reply submissions, the defendant submits that as the Decision was handed down on 11 March 2022 during the General Adjournment of Proceedings (GAP)  period, the defendant was not in a position to seek any clarification from the court earlier.  The Letter was sent on 13 April 2022, which was two days after the GAP period had ended on 11 April 2022.

12.  I do not accept the explanation given by the defendant for the delay. First, there was nothing to prevent the defendant from lodging (as opposed to filing)  the Letter with the court during the GAP period.  Second, the falsity of the defendant’s point is demonstrated by the fact that he was in fact able to have the costs order sealed and filed during the GAP period on 8 April 2022.

13.  For all the reasons stated above, I dismiss the Application with costs to the plaintiffs, such costs are to be taxed if not agreed.