LAU WING YAN v. THE OWNERS AND/OR DEMISE CHARTERERS OF THE SHIP OR VESEEL “BBG GLORY”

HCAJ 77/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO. 77 OF 2017

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HCAJ 78/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO. 78 OF 2017

HCAJ 79/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO. 79 OF 2017

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HCAJ 80/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO. 80 OF 2017

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D E C I S I O N

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1.  The Decision on Costs dated 10 October 2017 (Decision) did not deal with the time of payment of the costs awarded to the Defendants. On 24 October 2017, the Defendants took out the present application to vary the costs provisions by seeking summary assessment or taxation and payment forthwith in the alternative.

2.  Despite the attractive submissions of Mr Kok, appearing for the Plaintiff, I see no impediment to this application.  The costs order in question was an order nisi by virtue of O.42, r.5B without the need for express specification: see Healthy Wharf Ltd v The Official Receiver and Trustee of the Property of Leung Yat Tung, unrep, HCB 2019/2000, 15 November 2017, §3.  The issue of when the costs should be paid is normally argued once there is a decision on the incidence of costs.  In this case, the point was not addressed in argument.  Therefore, it sits with common sense that the costs order, made in a decision handed down after the hearing[1], was a nisi order.

3.  I have also explained to the parties that the costs order was intended to be an order nisi and hence, if it were necessary to spell that out explicitly, it was an omission.

4.  I am informed that the order pursuant to the Decision has very recently been sealed.  I do not believe that this step inhibits the court from dealing with the present application.  If the costs order was a nisi order, the sealed order would not change that. 

5.  I agree with the Defendants that following the CJR immediate payment of the costs of interlocutory proceedings and by way of summary assessment are to be encouraged: see Midland Business Management Ltd v Lo Man Kui (No 2) [2011] 2 HKLRD 667, §9 and Marrakesh Investments Ltd v Tangiers Holdings Ltd, unrep, HCCW 352/2016, 7 September 2017, §26.

6.  In respect of HCAJ 77/2017 and HCAJ 78/2017, given the sale of the vessels in question they have been rendered academic. There is no reason why the costs awarded to the Defendants should not be payable forthwith.  Mr Kok has, fairly, not advanced any additional argument on this point.  On the question of taxation or summary assessment, Mr Kok has indicated a preference for the latter if the court is against the Plaintiff on this application. 

7.  As for the derivative actions, HCAJ 79/2017 and HCAJ 80/2017, if they are to continue amendments will be required by, inter alia, joining the alleged wrongdoer(s).  The Defendants will become nominal parties.  I also see no reason why the Defendants should not have the costs awarded to them paid forthwith.

8.  In the premises, I allow the application and vary the costs order to one of summary assessment.  Immediate obligation to pay the assessed costs follows automatically under the rules.  

9.  I shall proceed to deal with the summary assessment and hear the parties on the costs of this application.