MAN'S (ASIA) DEVELOPMENT LTD v. FUNG CHI KIN

HCA 1279/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1279 OF 2013

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D E C I S I O N

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1. This is a perfectly straightforward application by the Defendant for variation of the costs order nisi made under the Judgement dated 24 March 2017 by reason of the failure of the Plaintiff to accept a sanctioned payment which exceeded what was recovered by the Plaintiff under its claim. Regrettably, it has generated no less than 6 arguments from the Plaintiff, but none of which is of any merit.

2. It should be made clear that the Plaintiff’s action was actually dismissed notwithstanding that a small amount of rent, namely, a sum of HK$1,067 was found to be owed to the Plaintiff by the Defendant.  The reason was that the Defendant had attempted to pay the rent and it was reclined by the Plaintiff’s agent (see para 25 of the Judgment).  The sum of HK$1,067 was deducted from the Defendant’s entitlement under the counterclaim. 

3. I am unable to agree that the Notice of Sanctioned Payment was unclear in any real sense.  The Plaintiff knew perfectly well that its case did not represent the truth, and the sanctioned payment should have been accepted.  On the other hand, I agree that the acceptance of the sanctioned payment would not have prevented a trial of the counterclaim. Therefore, the indemnity costs entitled should be confined to the costs of the action, but not the costs of the counterclaim.

4. Para 1 of the Defendant’s Summons filed on 14 April 2017 is not disputed.  I make an order in its terms.  As for para 2, I make an order in terms subject to, firstly, limiting the indemnity costs to the action as aforesaid.  Secondly, the interest on the costs should be limited to 4.5% p.a. on costs incurred from 16 May 2015 (see Golden Eagle International (Group) Ltd v GR Investment Holdings Ltd [2010] 3 HKLRD 273) until judgment and at judgment rate thereafter until payment.

5. I shall hear the parties on costs of this hearing.