CHEUNG KWAN HO v. MAN CHEUNG LAM AND ANOTHER

DCCJ 4546/2019

[2024] HKDC 2068

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4546 OF 2019

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BETWEEN

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DECISION

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I. INTRODUCTION

1.  I handed down my judgment on 10 October 2024 (“the Judgment”) after trial and made a costs order nisi at §70 of the Judgment that “the 1^st defendant do pay the plaintiff 40% costs of the action (including any costs reserved), to be taxed if not agreed, with certificate for counsel.”

2.  By summons dated 29 October 2024, the 1^st defendant seeks to vary the costs order nisi to be the following costs order:-

(1) The 2^nd defendant do pay to the 1^st defendant the costs of Counterclaim, to be taxed if not agreed;

(2) The plaintiff do pay to the 1^st defendant the costs of Defence in relation to the plaintiff’s claim for injunctions and/or orders for right of way and access through the footpath(s) and damages in relation thereto (with Certificate for Counsel), to be taxed if not agreed; and

(3) The 1^st defendant do pay to the plaintiff 40% of the costs of this action to be taxed / assessed on Small Claims Tribunal scale (with no Certificate for Counsel) or alternatively there be no order as to costs of this action in relation to the plaintiff’s claims.

For convenience, I shall refer to the above as “Proposed Order (1)”, “Proposed Order (2)”, and “Proposed Order (3)”.

II. DELAY DUE TO 1^ST DEFENDANT’S FAILURE TO HEED TO COURTS’ REPEATED REMINDERS TO LEGAL PRACTITIONERS

3.  It is unfortunate that while the Court has time and again reminded legal practitioners that an application to vary a costs order nisi should be made by way of summons rather than writing letters: see, for example, Chow Kwan Yee v Leung Mei Yin May and Anor, HCA 1260/2017, 24 January 2020 at §2 per DHCJ MK Liu citing PCCW-HKT Telephone Ltd v Telecommunications Authority, CACV 274/2003, 7 September 2004 at §11 per Ma CJHC (as he then was), on 23 October 2024 (Wednesday), the 1^st defendant still took the wrong step by writing a letter to the Court allegedly applying for variation of the costs order nisi. Upon perusal of the letter, I directed by letter dated 28 October 2024 (Monday) that any application should be made by way of summons.

4.  As a result, the 1^st defendant took out the present summons on 29 October 2024 out of time. In the skeleton submissions, the 1^st defendant’s counsel, Ms Virginia Leung, specifically wrote “5 days lapsed” after the date of my aforesaid directions, apparently trying to lay the blame on the Court’s failure to make the directions promptly. The Court is not the parties’ legal advisers and the Court cannot be expected to read letters immediately upon filing with the Registry, and to reply to letters immediately upon perusal. The fault of the delay still lies upon the 1^st defendant or his legal advisers. This reason for the delay is not a good reason.

5.  But I should still have to look at the merits to see whether I should grant leave for the application to vary the costs order nisi.

III. THE 2^ND DEFENDANT DO PAY TO THE 1^ST DEFENDANT THE COSTS OF COUNTERCLAIM, TO BE TAXED IF NOT AGREED

6.  In respect of Proposed Order (1), as said in §2 of the Judgment, the 2^nd defendant initially consisted of Tang Tong and Tang Kin Kwok, both in their capacity of the managers of Tang Siu U Tso. However, Tang Tong passed away in December 2020, and Tang Kin Kwok became the only person in the 2^nd defendant after that.

7.  While Tang Tong himself joined the 1^st defendant in the latter’s counterclaim, he and Tang Kin Kwok did not take any active role as the 2^nd defendant in the proceedings. Essentially, they as the 2^nd defendant took a neutral stance. After Tang Tong passed away, Tang Kin Kwok became the only one in the 2^nd defendant’s role. The only role he took in the proceedings was acting as a witness for the plaintiff, but not in his role as the 2^nd defendant to defend, let alone pursuing any counterclaim he had not joined at all. I do not see why by simply acting as a witness for the plaintiff in such circumstances would then attract adverse costs consequence for the 2^nd defendant in respect of the counterclaim.

8.  This Proposed Order (1) is completely unreasonable and completely unmeritorious. Therefore, I would refuse to make Proposed Order (1).

IV. THE PLAINTIFF DO PAY TO THE 1^ST DEFENDANT THE COSTS OF DEFENCE IN RELATION TO THE PLAINTIFF’S CLAIMS FOR INJUNCTIONS AND/OR ORDERS FOR RIGHT OF WAY AND ACCESS

9.  In relation to Proposed Order (2), I explained in §66 of the Judgment that it was essentially a set-off between the plaintiff’s claim (except for the damages part) and the 1^st defendant’s counterclaim. I did the set-off because the plaintiff’s claim (except for the damages part) and the 1^st defendant’s counterclaim both related to the ownership of the Land, and this issue was decided in the HCMP Judgment and finally disposed of in CACV 98/2020. While the time spent on the counterclaim during trial was nil because the 1^st defendant only abandoned his counterclaim at the Pre-trial Review (“PTR”), however, before the PTR, the plaintiff still had incurred costs in relation to this counterclaim. Thus, I think the broad-brush approach I took in the Judgment is reasonable.

10.  The 1^st defendant submits that because no order was made as to costs arising from the withdrawal of the counterclaim between the plaintiff and the 2^nd defendant, there should also be no order as to costs between the plaintiff and the 1^st defendant. I fail to see any logic. The 2^nd defendant has been nominal only. Before Tang Tong passed away, he did join the 1^st defendant’s counterclaim, but in his own personal capacity. After he passed away, he became completely out of the picture. He is no longer a party to the present action. If the 1^st defendant thinks fit, he is at liberty to make necessary application to seek costs against Tang Tong’s estate, who is now not a party to the present action. But as between the plaintiff and the current 2^nd defendant, namely, Tang Kin Kwok himself alone, I maintain that it is appropriate to make no order as to costs between them.

11.  The 1^st defendant has raised no good reason to explain why the 1^st defendant could ignore the costs incurred by their abandoned counterclaim and just claim the plaintiff for costs of the action.

12.  I would refuse to make the Proposed Order (2).

V. THE 1^ST DEFENDANT DO PAY TO THE PLAINTIFF 40% OF THE COSTS OF THIS ACTION TO BE TAXED / ASSESSED ON SMALL CLAIMS TRIBUNAL SCALE (WITH NO CERTIFICATE FOR COUNSEL) OR ALTERNATIVELY THERE BE NO ORDER AS TO COSTS

13.  In respect of the Proposed Order (3), I shall deal with the scale for taxation first. I explained in §69 of the Judgment why I thought District Court scale should still be adopted. The main reason was, in essence, that because the counterclaim was only abandoned at the PTR, the plaintiff would have to stay in the District Court to deal with the counterclaim, and given that the counterclaim related to the plaintiff’s claim, it was reasonable for the plaintiff to stay in the District Court.

14.  In this regard, the 1^st defendant seemed to suggest that he was passive in the counterclaim and that he could not withdraw the counterclaim because Tang Tong, who joined the counterclaim, passed away. I reject such suggestion. At the very least, the 1^st defendant could have far earlier indicated, as he actually did, that he would not pursue the counterclaim. Had he done so earlier, even if formally the counterclaim could not have been withdrawn, no further costs would have been incurred in relation to the counterclaim. The fact was that the counterclaim remained extant, and thus the plaintiff’s claim had to stay in the District Court as a result.

15.  As regards whether it was reasonable for the plaintiff to commence the claim in the District Court in the first place, because when the action was commenced in 2019, the HCMP Judgment (handed down on 5 March 2020) was not yet available, in my view, it was reasonable at that time for the plaintiff to commence the claim in District Court.

16.  Insofar as there is any suggestion that the injunctive relief in relation to the Pipe, not pursued at trial, should not have been sought in the first place and thus the claim should have been a pure monetary claim within the jurisdiction of the Small Claims Tribunal, I bear in mind that the Pipes were damaged in 2018 and therefore find that it was reasonable to seek such injunctive relief in the action commenced in 2019. In any event, even without this injunctive relief, there was still the injunctive relief in relation to the Footpaths, the merits of which would hinge upon the HCMP Judgment.

17.  As regards the apportionment, my impression from hearing the trial was that time spent on who erected the obstacles on the footpaths and whether there was a right of way was more than for the damages part, which concerned the Pipes only. The volume of the papers in the trial bundles accord with my impression.

18.  Ms Leung, for the 1^st defendant, contends that the plaintiff’s claim over the Pipe was not just for damages, but also for the injunctive relief which the plaintiff indicated only towards the end of the trial that he was not pursuing. However, I do not see the claim for the injunctive relief in relation to the Pipes added any or anything significant to the claim for damages in relation to the Pipes.

19.  Having considered the mattes above, I still think that my apportionment in the Judgment is appropriate.

20.  Therefore, I would refuse to make Proposed Order (3).

VI. CONCLUSION

21.  In the circumstances, I refuse to grant leave for the 1^st defendant to apply out of time to vary my costs order nisi, with costs be to the plaintiff to be taxed if not agreed. I also order that the plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.