XCHRX BEAUTIGLORY INVESTMENT LTD. v. TANG LOI AND OTHERS

HCMP531/1989

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.531 OF 1989

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J U D G M E N T

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1. I have before me at the end of today's hearing a difference of view between the plaintiff and the defendants on the question of costs.

2. The plaintiff by its Originating Summons issued on 9 March 1989 sought for an order for a partition or a sale of the land of which it claims that it has a quarter interest. The claim was made by the plaintiff against the three defendants. Godfrey J (as he then was) in November 1983 judgment held in favour of the plaintiff on the preliminary issue as to whether the plaintiff have the necessary interest as alleged. The question of what then should follow upon that preliminary question of the locus standi was left of course to be dealt with normally at trial.

3. The plaintiff issued a summons on 11 April 1996 praying for the making of an order of Godfrey J by reference to an enclosed plan which set out a propose partition formula. That summons came before me and I gave directions for the trial of how to proceed with the rest of the action on the disputed formula of partition. There had been subsequent order made in December 1996 whereby the plaintiff was given extension of time pursuant to my previous order of direction.

4. In 1999, subsequent to the making of the 1996 orders, there had been resumption of part of the land in question. There was a major change of direction by the plaintiff because it could see that it was no longer feasible for the particular form of partition that it had sought and by its recent summons issued on 29 October 2001 which is now the matter before me, it asks for directions for the trial including directions as to its new proposal that the land be sold. There can be no doubt that that is a major change of direction.

5. The question for me to decide now is whether as a result of its major change of direction (it having been agreed today that its previous actions, that is to say the summons in April 1996 did not debar the plaintiff from issuing and seeking the present summons for sale and it having be agreed and directed that an order more or less in terms of the present summons should be made with the exception of substituting a longer period of time under paragraph (iii) and (iv) by two months from one month) costs should now be borne by the plaintiff on basis that all costs have been wasted as a result of steps taken in 1996.

6. Mr Mok, counsel for the plaintiff, suggested that there could be a number of combinations of the final outcome at the end of the day after trial and that it would be sensible to reserve costs and defer everything until the trial. Mr Chu for the 1st and 3rd defendants and Mr Tsang for the 2nd defendant urge me to make an immediate order of costs in their favour although there is some debate as to the scope of the costs that should be ordered.

7. I have a great deal of sympathy for the strong feelings of the defendants that they should be given an immediate costs order now but I think that at the end of the day, the costs consequence to this rather unusual sequence of events should await the final outcome and that a precipitous order of costs should not be made. I think in all the circumstances in this case it is better, in my view, that the costs incurred both by today's summons as well as what had taken place subsequently in 1996 should be reserved. I was invited at one stage to say that the costs which was reserved under paragraph 7 of my order of 1 July 1996 at page 8 in the bundle should now be made in favour of the defendants straightaway. In the light of all the circumstances, I decline to do so.

8. My order therefore is that the costs of the application be reserved as prayed for in (ix) at page 3 of the plaintiff's present summons. As I have indicated earlier today, the order that I am making is the summons with the exception of changes in (iii) and (iv) by the substitution of two months to one month and the addition of the words under (iii) whether it is in support or opposition of that order.