KO SIN YUN v. CHAN CHUEN

DCCJ6693/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6693 OF 2004

D E C I S I O N

1.  The 1st defendant applies for leave to appeal against my order against the 1st defendant on costs in the setting aside of judgment in default application of 24 February 2006.  The 1st defendant further applies for leave to appeal against my dismissing the defendant’s summons on 13 March 2006 to vary the costs order of 24 February 2006 to the 1st defendant’s favour.

2.  At today’s hearing, Mr Chua, solicitor for the 1st defendant, reminded me of the merits of the 1st defendant’s case.  He submitted that even if the judgment in default was a regular one, the plaintiff’s statement of claim contained defects which needed to be cured by amendment, therefore the 1st defendant was entitled to be awarded his costs and his application to set aside the judgment ended in default.

3.  Mr Ngai referred to the Practice Notes on page 923 of the Hong Kong Civil Procedure under Order 62/2.  In Practice Note Order 62/2/11 it is stated, and I quote as follows:

“The Court of Appeal will not interfere with the exercise of a judge’s discretion in the award of costs unless it was shown that he failed  to exercise the discretion, or exercise it upon a false principle or did not exercise it judicially or the exercise of discretion was demonstrably flawed.”

4.  At the hearing on 21 March 2006 I gave my reasons for dismissing the 1st defendant’s summons and I gave full reasons as to why I had awarded costs against the 1st defendant on 24 February this year.

5.  The reason, I repeat here, was that the judgment was a regular one and the normal practice under Order 13/9/16 of the Hong Kong White Book, was for the applicant to set aside the judgment entered regularly to bear the costs of the application.  In this case the 1st defendant had waited nine months after the default judgment was entered to apply to set it aside.  I did not and do not see any good reason why the 1st defendant should not bear the consequences of that delay.

6.  I have also made and given full reasons on 24 February 2006 as to why I was satisfied that the judgment was a regular judgment, and I shall not repeat them here. 

7.  Mr Chua submitted today that the plaintiff’s statement of claim did not disclose the whole picture of the claim.  The lack of particulars in the statement of claim raised was the cause for my setting aside the default judgment.  I had considered the defendant had raised an arguable defence on the merits and that was why, even though the judgment was entered regularly, I  did allow to set it aside. 

8.  If not for this reason the judgment would not have been set aside but this does not automatically mean that the 1st defendant should have the costs of his application.  For the reasons given above, that the judgment was a regular one, and because the 1st defendant had delayed coming to court to apply to set it aside, I considered the usual practice under Practice Note 13/9/16 should apply.  There was nothing new raised for me to consider that I should order costs otherwise then follow the usual practice.

9.  Up to the present I have not been shown or heard any good reasons why I should exercise my discretion differently.  I do not see that the 1st defendant has any merits in this appeal against my decision on costs against him.  Therefore, I refuse leave to appeal against the order for costs.

(Submissions on costs)

10.  I award costs of the application and today to the plaintiff in any event.