MAN KING CHUEN AND OTHERS v. INTERNATIONAL COLLEGE HONG KONG HONG LOK YUEN ASSOCIATION LTD (formerly known as HONG LOK YUEN INTERNATIONAL SCHOOL ASSOCIATION LTD) AND ANOTHER

HCA 299/2011

[2023] HKCFI 2342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 299 OF 2011

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DECISION
ON COSTS

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1.  I refer to my Judgement of 29 May 2023 (the “Judgment”)[1] for background of the matters.

2.  By summons of 12 June 2023 (“Summons”), D1 seeks, in gist, an order to the effect that:

(a)  D1 and D2 do pay 70% of Ps’ costs of and in this action (§1);

(b)  Ds’ liability to pay costs be apportioned between themselves, with D1 bearing 30% and D2 bearing the balance of 70% (§2);

(c)  “The liability of [Ds] to pay damages/ mesne profit awarded to [P] (from 23 February 2005 on the rates and as calculated at paragraph 278 of the Judgment)  be apportioned such that:

(i)  [D1] be liable to pay only 60% of the total amount due; and

(ii)  [D2] be liable to pay only 40% of the total amount due.” (§3).

3.  On 12 July 2023, and by consent, §§1 and 2 of the Summons were adjourned sine dine, with directions given for dealing with §3 on the papers. 

4.  Ps and D1 have since filed their submissions and replies.  

5.  I have considered the same.

B.  Material parts of the Judgment and the Sealed Order

6.  The following matters which appear, or do not appear, in the Judgment and Sealed Order are relevant:

(a)  I recited the evidence[2] that Portion A is about 1,640m² in size, and that Portions B and C are about 2,528m² in total size;

(b)  The percentage of the total size of Portions B and C to the total size of all 3 Portions is hence (2,528/(1,640 + 2,528))  x 100 = 60.65% ; 

(c)  I dealt with D1’s factual possession in Section J.2. of the Judgment;

(d)  As I have stated in §134 of the Judgment, D1’s case relates to Portions B and C only;

(e)  I found and concluded at §174 that “whilst D1’s possession, occupation and use of Portions B and C have since 1984 been exclusive of everyone else, they have not been exclusive of D2.  D1 has been occupying the same upon D2’s agreement and permission”;

(f)  I in §§272 to 278 of the Judgment dealt with the quantum and rate of damages or mesne profits;

(g)  At §282(b)  of the Judgment, I granted Ps Judgment against both D1 and D2 in that “D1 and D2 shall pay damages/mesne profit to Ps from 23 February 2005 on the rates and as calculated [in §278] above” (the “Relevant Order”);

(h)  It is not expressly specified in §282(b)  as to whether D1 and D2 are to be liable on a joint and several basis or otherwise of the entirety of the assessed damages/mesne profits;

(i)  Ps subsequently submitted the draft Judgment for approval.  §2 thereof reads “[D1] and [D2] shall jointly and severally pay damages/mesne profit to [Ps] …”

(j)  The draft Judgment was approved, and sealed and filed on 26 June 2023.

C.  Parties’ stances

7.  D1 seeks amendment of the Relevant Order in the terms as set out in §3 of the Summons pursuant to the Slip Rule and/or the inherent jurisdiction of the Court.

8.  D2 has no objection to D1’s proposed ratio of apportionment, and is otherwise neutral in relation to §3 of the Summons.

9.  Ps has no objection to the ratio of apportionment.  It takes the view that it is a matter between D1 and D2 inter se.  They object to the change of basis from one of “joint and several” to one of “several”.  They take the positions that the Slip Rule does not apply, that as the Order has been sealed, D1’s only route of challenge is by way of an appeal, and that this Court should in any event in its discretion refuse to vary the Relevant Order.

D.  Discussion

10.  The facts are clear. D1’s case concern only Portions B and C.  There is no basis for D1 to bear the damages/mesne profit for D2’s occupation of Portion A.

11.  §282(a)  of the Judgment orders that “D1 and D2 shall deliver to Ps vacant possession of the Subject Lot”.  That can only mean that D1 and D2 shall deliver to Ps vacant possession of the portions of the Subject Lot which they are occupying (themselves or through agent(s)).

12.  Similarly, §282(b)  of the Judgment can only mean that D1 and D2 shall pay damages/mesne profit to Ps from 23 February 2005 on the decided rates in respect of the portions of the Subject Lot which they have occupied during the period concerned.  There can be no other meaning.  It cannot mean that D1 shall also bear the damages/mesne profit for Portion A which it has never occupied.

13.  So understood, the effect of §282(b)  is no different from ordering Ds to bear the damages/mesne profit on a several basis in proportion in accordance with the relative size of Portion A on the one hand, and Portions B and C on the other. 

14.  That is the true meaning which is in my view clear and obvious from the bases of Ds’ cases, the evidence, the structure of the Judgment, and the wording of the same.

15.  I have been cited Man Ping Nam v Man Fong Hang (No 2)  2007 (10)  HKCFAR 140.  As explained by Ribeiro PJ at §§10-11:

“10. Even if an Order as drawn up is ambiguous, it is well settled that the court (at all levels) has an inherent or implied discretionary power to clarify the original order if the court’s intention appearing from the body of the judgment is manifest. As Lord Penzance stated in Lawrie v Lees (1881–82) LR 7 App Cas 19 at pp.34–35:

‘I cannot doubt that under the original powers of the Court, quite independent of any order that is made under the Judicature Act, every Court has the power to vary its own orders which are drawn up mechanically in the registry or in the office of the Court — to vary them in such a way as to carry out its own meaning, and where language has been used which is doubtful, to make it plain. I think that power is inherent in every Court.’

See also the cases cited in Hong Kong Civil Procedure 2007, Vol.1, at p.379 para.20/11/1.

11.    In the absence of any prejudice to the other party (in which event discretionary considerations may come into play), it matters not that an application for such clarification is made after the Court’s order has been sealed since it operates to make plain what the Court has in fact already decided.  It does not involve the Court acting when functus officio.”

16.  Clarifying the Relevant Order as requested will not cause any prejudice to Ps.  Their entitlement to claim the balance of the 40% has not been and would not be affected.  In so far as they are seeking to say that they can no longer claim the 40% from D1 should D2 refuse to pay the same, they are not entitled to do so to start with according to the clear and manifest effect of the Judgment.

E.  Disposition

17.  For the reasons set out above, I allow §3 of the Summons.  In so far as it is necessary, I also order that the sealed Judgment be accordingly amended or clarified.

18.  I make an order that the costs of and occasioned by §3 of the Summons be paid by Ps to D1, to be assessed summarily.  For that purpose D1 is directed to lodge its Statement of Costs within 14 days from the date hereof, and Ps to lodge its Statement of Objections within 7.  No reply is directed to save costs.