ZHANG CHUNXIA v. MR. TIN CORPORATION LTD trading as ABERDEEN TIN KEE FISHBALL NOODLES

DCPI 1281/2025

[2026] HKDC 803

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1281 OF 2025

________________________

________________________

________________________

DECISION ON COSTS

________________________

Background

1.  This action arose from a trivial accident which occurred on 26 August 2024 in which the Plaintiff (“P”), a customer in the noodle shop of the Defendant (“D”), allegedly sustained personal injuries when a small amount of hot soup from a noodle bowl was caused to spill onto her left forearm.

2.  P allegedly went on sick leave for more than a month. In this action, she claims against D damages for personal injuries totalling about $210,000 plus interest as pleaded in her Statement of Damages filed on 11 April 2025.

3.  The action was settled upon P’s acceptance on 25 November 2025 of sanctioned payments totalling $28,000 made by D. The remaining issue is one of costs of the action.

4.  D disputes P’s entitlement to costs of the action on the District Court scale prescribed under O 22 r 20(1)  of the Rules of the District Court (“RDC”)  pursuant to her acceptance of the sanctioned payments. It issued a Summons on 15 January 2026 (“D’s Summons”), seeking to invoke the Otherwise Proviso under O 22 r 20(1)  RDC and not pay P’s costs, or pay P only Small Claims costs.

D’s Summons

5.  Before this Court is D’s Summons seeking the following order:

(i)  P’s costs shall be disallowed, or alternatively be assessed in the manner similar to those allowed in the Small Claims Tribunal, such costs to be taxed if not agreed; and

(ii)  Costs of D’s Summons be to D.

6.  In considering D’s Summons, I have perused the following documents filed/submitted by the parties:

(i)  D’s Affidavit in support filed on 15 January 2026 (“D’s 1^st Affidavit”);

(ii)  P’s Affirmation in opposition filed on 3 February 2026 (“P’s Affirmation”);

(iii)  D’s Affidavit in reply filed on 10 March 2026 (“D’s 2^nd Affidavit”);

(iv)  D’s written submissions with list of authorities filed on 8 April 2026 (“D’s Written Submissions”); and

(v)  P’s letter (attaching a list of authorities)  filed on 17 April 2026, confirming that other than the matters stated in P’s Affirmation, she had “no further submissions to make” and would not require an oral hearing.

Consideration

7.  Shortly after issue of D’s Summons on 15 January 2026, P’s solicitors had, by their letter dated 19 January 2026, agreed to “accept costs on the Small Claims Tribunal scale”. Such agreement and P’s stance was again confirmed in P’s Affirmation.

8.  In those circumstances, P has agreed to the alternative relief sought in §1 of D’s Summons. The only outstanding issue relates to costs of D’s Summons, of which D seeks costs, but P argues no order as to costs.

9.  An affidavit/affirmation may contain only such facts as the deponent is able of his own knowledge to prove (See O 41 r 5 RDC; Hong Kong Civil Procedure 2026 Commentary 41/5/1).

10.  In the present case, the parties’ affidavits/affirmation, all sworn/ deposed by the solicitors, contain mainly legal arguments and submissions – this is wholly inappropriate.

11.  By D’s 1^st Affidavit, it sets out legal arguments on invoking the Otherwise Proviso under O 22 r 20(1)  RDC and seeks not to pay P’s costs.

12.  By D’s 2^nd Affidavit, again, instead of setting out “only such facts as the deponent is able of his own knowledge to prove” as required by O 41 r 5 RDC, D re-states legal arguments, and further, for the first time, slips in legal arguments in seeking (i)  indemnity costs against P; (ii)  equitable set-off of costs against the sanctioned payments accepted and to be released to P upon settlement; and (iii)  a wasted costs order against P’s solicitors personally.

13.  Such reliefs are not sought in D’s Summons.

14.  In D’s Written Submissions, it goes to great lengths in arguing and seeking the new reliefs not sought in its Summons, and submits and relies on a whole bundle of authorities on wasted costs orders and equitable set-off.

15.  No proper applications were taken out by D in respect of these new reliefs sought. P did not have the opportunity to properly deal with them.

16.  Such litigation conduct of D is wholly inappropriate, must be discouraged and should entail costs sanctions.

17.  I refuse to deal with the issues of indemnity costs, wasted costs order and equitable-set off not sought in D’s Summons and inappropriately raised for the first time in D’s 2^nd Affidavit in reply.

18.  To show the court’s disapproval of D’s conduct in slipping in new applications and raising legal arguments thereof in the affidavit in reply, I consider it appropriate and exercise my discretion to order costs in relation to D’s 2^nd Affidavit containing substantial legal arguments in favour of P and against D.

19.  In regard to costs of D’s Summons, having considered all circumstances, in particular that P’s acceptance of Small Claims costs of the action only came after issue of D’s Summons, I consider it appropriate to order costs of the Summons in favour of D and against P. I however do not consider it appropriate to order indemnity costs against P as sought by D in view of P’s concession made shortly after issue of D’s Summons.

20.  Taking a holistic approach in exercising the court’s discretion on costs, I consider it appropriate to award D only 40% costs of D’s Summons.

Order

21.  I make the following order:

(1)  Costs of the action be to P, payable by D, at a level similar to those applicable in the Small Claims Tribunal, such costs to be summarily assessed by this court; and

(2)  D shall have 40% of the costs of D’s Summons, payable by P, to be summarily assessed by this court.

22.  The costs order made in §21(2)  hereinabove is an order nisi, and may be varied upon application by any party.

23.  In view of the intervention in the practice of P’s solicitors commencing on 29 April 2026 as resolved by the Council of the Law Society of Hong Kong (“Council”), I consider it appropriate to allow more time for the parties to make applications for variation of the costs order nisi, if so advised.

24.  In the absence of application from any party to vary the costs order nisi made in §21(2)  hereinabove within 42 days by way of summons supported by affidavit, the costs order will become absolute.

25.  I further order that, in the event that the costs order nisi becomes absolute, for the purposes of summary assessment, the parties do submit within 14 days thereafter (1)  P’s Statement of Costs in respect of the costs of the action; and (2)  D’s Statement of Costs in respect of the costs of D’s Summons. The parties do submit within 14 days thereafter their respective Lists of Objections, if any, to the Statements of Costs lodged by the opposite party. Summary assessment will be dealt with on paper thereafter whether or not Lists of Objections are lodged.

26.  In view of the intervention in the practice of P’s solicitors, I direct that a copy of this Decision be sent by the court to (i)  P’s solicitors on record; (ii)  P at her address, if any, shown on the court record; and (iii)  Messrs Robertsons, the Intervention Agent appointed by the Council.