WONG KOT KI v. FANTASTIC STATE LTD

DCCJ 4604/2015

[2025] HKDC 1992

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4604 OF 2015

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DECISION

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1.  The Plaintiff took out an inter parte summons (“P’s Summons”) on 7 April 2025 for leave to appeal from my judgment handed down on 10 March 2025 (“the Judgment”). By way of summons dated 24 March 2025 (“D’s Summons”), D applied to vary the costs order nisi given in the Judgment.

2.  I will deal with both P’s Summons and D’s Summons in this decision. The facts and the reasons for the Judgment have been set out therein and I do not repeat the same here. For ease of reference, the abbreviations used in the Judgment are adopted in this decision.

PART I: P’s Summons

Applicable Principles for Leave to Appeal

3.  The legal principles applicable for leave to appeal are well-established. Section 63A of the District Court Ordinance, Cap 336 (“DCO”) is the governing provision. Section 63A(2) stipulates: -

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that —

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

4.  The relevant test of whether an appeal has a reasonable prospect of success under section 63A(2) of the DCO is whether the applicant can show that he has an arguable case with reasonable chances of success on appeal. It means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: see the Court of Appeal (“CA”) decision in KNM v HTF per Fok JA (as the learned PJ then was) at paragraph 9[1]. The same test has been consistently applied by the CA: see for example, Yuen Oi Yee Lisa v Charoen Sirivadhanabhakdi & Others [2].

5.  If there is a challenge of the court’s finding of facts (as opposed to the court’s application of law), the following legal principles apply:

a)  The CA can only intervene in a finding of fact by a primary judge where the finding is plainly wrong;

b)  In an appeal, the CA focuses on the question whether the primary judge has fallen into palpable errors which could only give rise to grounds for intervention by the appellate court; it is not germane that the CA may reach a different conclusion from that of the judge;

c)  Where a trial judge has reached a conclusion on the primary facts, the kinds of mistake which could engage an appellate court’s power of intervention are:

(i)  where there was no evidence to support the conclusion;

(ii)  the conclusion was based on a misunderstanding of the evidence; or

(iii)  the conclusion was one which no reasonable judge could have reached.

6.  As such, the appellate process is not designed to give a litigant (or his counsel) a platform for regurgitating his closing submissions on the factual aspects of the case again with the hope that the appellate judges may come to a different view to that of the primary judge. The mere assertion that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below are not errors coming within that category. (See China Gold Finance Ltd v CIL Holdings Ltd, unreported, CACV 11/2015, 27 November 2015 at paragraphs 14-16, and Yu Pak Kan v Busy Firm Investment Limited [2023] HKCA 105 at paragraph 19).

The proposed grounds of appeal

7.  The plaintiff’s solicitors set out their draft grounds of appeal in the said P’s Summons, which can be broadly described as follows:

(i)  I should find that the parties’ agreement includes a one-foot foundation below ground;

(ii)  I should interpret and construe the parties’ agreement includes a one-foot foundation below ground; and

(iii)  I should compensate P for the loss of the second batch of tiles that was ruined due to the prolonged exposure under the sun.

8.  The appellant court would only reverse a finding of primary fact if it were satisfied that the finding is plainly wrong. If not so satisfied, it would defer to the trial judge’s conclusion on fact even if in some doubt as to its correctness: Ting Kwok Keung v Tam Dick Yuen & Ors (2002) 5 HKCFAR 336 at paragraph 42.

9.  The draft grounds of appeal did not suggest any misapplication of law, and I do not consider my findings were based on misunderstanding of evidence. P actually ran the same arguments as advanced at trial, and those arguments were fully considered and rejected at trial.

10.  My factual finding for this case can be summarized as follows:

(a)  I rejected D’s Averred Agreement, instead I found that a verbal agreement was reached between P and Leung that the New Fence Wall will be erected by D for P with D bearing all the costs except tiles;

(b)  I rejected P’s Averred Agreement and found that P never said to Leung at and prior to the Dec 2009 Meeting that the New Fence Wall needed to have a one-foot foundation;

(c)  There was a lack of evidence supporting (i) Leung had knowledge about the existence of the one-foot foundation before the Dec 2009 Meeting, and (ii) the foundation of the Old Fence Wall was one-foot deep. Thus taking P’s case to the highest that he did use the phrase 原樣 consistently during the course of negotiations with Leung, the phrase 原樣 was to be understood as the original look, which did not include the structural design of any foundation.

Ground 1: I should find that the parties’ agreement includes a one-foot foundation below ground

11.  Ms Chan relied heavily on the LYL’s Quotation in November 2008 to infer both parties had actual or imputed knowledge of the existence of a one-foot foundation of the Old Fence Wall, and thus the agreement between the parties must have included so for the New Fence Wall. Such contention as discussed in paragraph 40 of the Judgment was one without basis because first, the foundation proposed by LYL was not one-foot deep, and secondly there was no evidence showing LYL did inspect the foundation of the Old Fence Wall. I formed the conclusion that the foundation was put there simply as the structural aspect of how LYL proposed to build the New Fence Wall. Further, and most importantly, the LYL’s Quotation formed no part of P and D’s agreement and could only “demonstrated P’s openness in considering D’s offer, and the emphasis of having the new fence wall the same features as the old one”.

12.  I have also carefully considered Leung’s background, thoughts and motives in the Judgment (paragraphs 34-36; 61-63, 68(b) and rejected the suggestion that Leung ought to know the existence of the foundation based on his work experience and site visits.

13.  P further argued that since the collapse of the Old Fence Wall revealed part of the foundation below ground, thus P and Leung must have the knowledge of the one-foot foundation. All objective evidence was carefully considered in paragraph 68 (a) to (g) of the Judgment to explain why such contention must be rejected and why it was likely that P had never raised the request of having the One-Foot Foundation when they formed the agreement. I must stress that the fatal point why P lost in this argument was because of his 5-year delay in raising the complaints of a missing foundation notwithstanding the fact that P was present when D’s workers were building the New Fence Wall.

14.  The Court refused to find that P made complaints to the workers when they were building the New Fence Wall without a foundation based on reasons stated in paragraph 68(e) of my Judgment. Ms Chan in paragraphs 81-90 of her submissions argued that the rectification work proposed by the expert in the Single Joint Expert Report dated 31 August 2023 showed that foundation could be laid retrospectively, and thus the Court erred in law to hold that it could not. With respect, I think Ms Chan has wrongly construed my point there. In paragraph 68 (e) of my Judgment, it was my observation that layman like P would not have the expertise to understand a missing foundation can be laid retrospectively and I maintain my view that, should the One-Foot Foundation been part of the agreement between parties, it is unrealistic that P would allow D’s workmen to continue the bricklaying knowing no foundation was being laid.

Ground 2: I should interpret and construe the parties’ agreement includes a one-foot foundation below ground

15.  The essence of P’s argument is that D agreed to rebuild the New Fence Wall that would be in the same state and condition of the Old Fence Wall (依照原有圍牆原樣重建給本人), which included the One-Foot Foundation. One must appreciate the phrase ‘same state and condition’ was adopted by the legal professionals in the pleadings but the actual wordings allegedly used by P was 原樣. Since the overriding objective in construction is to give effect to what a reasonable person rather than a pedantic lawyer would have understood the parties to mean, I refused to accept ‘same state and condition’ being the only and accurate translation of the term 原樣 based on the discussion in paragraphs 55 to 67 of the Judgment.

16.  Bearing in mind that the court is entitled to take into account of parties’ conducts subsequent to the agreement to test what terms were included (paragraphs 75-76 of the Judgment), and based on my findings that (1) Leung did not have the knowledge of the One-Foot foundation at all material times; and (2) P could not have such knowledge at the 2008 Meeting and the Mid-2009 Meeting; (3) the appearance of the New Fence Wall looked identical to the Old Fence Wall; and (4) the delayed complaint of P regarding the missing foundation, I maintain my view that the true meaning of what P meant by 原樣 was to have a new wall which visually ‘looks like the original one’.

17.  In paragraph 97 of Ms Chan’s submissions, she further elaborated that the phrase ‘same state and condition’ must be that the New and Old Fence Wall would be identical in every way, including every dimension and feature above and below. This argument did not appear to be part of P’s pleaded case and in any circumstances, should that be the parties’ intention and/or agreement, there was no convincing evidence showing that the parties discussed about the structural elements of the New Fence Wall, including any measurement of the foundation of the Old Fence Wall.

Ground 3: It is erred in law to conclude the steel bars laid could serve a similar purpose as a foundation to the New Fence Wall in the absence of expert evidence

18.  This intended ground does not independently overturn my factual findings of the parties’ agreement, and in any event, the Court is entitled to make its own findings in the absence of expert evidence. It was P’s evidence that the steel bar could prevent subsidence and help with stabilization, while the Court did not accept his opinion as evidence, his evidence reinforced the uncertainty of P’s pleaded case what actual function a One-Foot Foundation serves that the steel bars cannot.

Ground 4: I should compensate P for the loss of the second batch of tiles that was ruined due to the prolonged exposure under the sun

19.  The fatal point of P not being compensated for the loss of his second batch of tiles was that, as stated in paragraph 87(4) of the Judgment, a different case was pleaded in the ASOC. P simply could not pinpoint any misapprehension of evidence on the part of this Court or any findings that no reasonable court, when presented with the evidence now placed before this Court, would have come to.

20.  To conclude, there is no merit in any of the grounds proposed by P. There is no reasonable prospect of success in the P’s appeal. The P’s Summons must be dismissed.

PART II: D’s Summons

D’s Summons for varying costs order nisi

21.  The Court made a cost order nisi that there be no order for costs in favour of any party because both parties were not entirely successful in their respective case. Based on P’s rejections of some without prejudice (“WP”) offers and thereafter sanctioned payments made by D, it was D’s case that the costs order nisi should be varied to the effect that:

a)  P do bear all costs of D in this action from the date they made their Calderbank offer to P of a sum which D did better at trial (“the Cut-Off Date”) on an indemnity basis to be taxed on the District Court (“DC”) scale, if not agreed;

b)  For costs incurred before the Cut-Off Date, D do bear P’s costs of and occasioned by P’s claim for the costs of plastering labour to be taxed on a DC scale up to the Cut-Off Date and on a scale similar to that of the Small Claims Tribunal (“SCT”) thereafter; and

c)  P do bear D’s costs of and occasioned by defending the remaining claims of P (but the costs of labour for plastering) up to the Cut-Off Date, to be taxed on a DC scale if not agreed;

  And alternative to (b) above

d)  Should there be no Cut-Off Date, the P’s costs borne by D should be taxed on a DC scale up to the date from which the jurisdiction of the SCT was increased from HK$50,000 to HK$75,000, ie 3 December 2018 and on SCT scale thereafter.

22.  In essence, D is asking for all costs on indemnity basis after they made their first WP offer to P (“1^st WP Offer”), ie on 10 December 2015 because that offer reflected the final judgment of this Action, namely a dismissal of all P’s claims but the labour costs for plastering/tiling of the New Fence Wall, hence P’s refusal of such settlement offer attract an award of indemnity costs.

23.  Further, D argued that the Court should apportion the costs so that they should only bear the cost of and occasioned by the argument in respect of the plastering/tiling of the New Fence Wall pre-Cut-Off Date.

24.  Besides, as the final award made by the Court was within the jurisdiction of SCT, D argued P was being unreasonable in persisting his action in the DC and the appropriate forum for P should be the SCT. As such, the cost borne by D in respect of the plastering labour should be on SCT scale than DC scale.

25.  In order to decide whether there should be a Cut-Off Date and whether such costs should be paid by P to D on an indemnity basis, it is important to examine the events happened during the early stage of the proceedings in this case. The followings are gleaned from the WP correspondences between the parties as disclosed under the Affirmation of Leung Hon Man filed on 24 March 2025.

Date	Details of the correspondence
24 Aug 2015	Letter before Action from P’s then solicitors RHC to D’s solicitors Kao, Lee & Yip (“KLY”)
8 Oct 2015	Writ issued
10 Dec 2015	1st WP Offer from D in the following terms: “(a) our client and/or agent(s) shall at our client’s labour costs carry out the necessary works to the subject wall to a reasonably good condition with the tiles to be provided by your client; or (b) our client shall pay your client a sum of HK$30,000.00 representing the labour costs as referred to in paragraph (a) above if your client insists on retaining their own contactor (sic) to carry out the said works.” D further asked P to reply within 14 days and for his consent to withhold filing the Defence in view of the ‘ongoing WP negotiation’.
10 Dec 2015	P replied to D’s 1st WP Offer by asking “whether your client’s offer under items (a) or (b) will in any event include a term that your client shall pay our client’s costs of the action to be taxed if not agreed”. Further to that, P agreed to D withholding the filing of Defence “until such time as we inform you the contrary”.
14 Dec 2015	D replied to P’s letter dated 10 Dec 2015 by clarifying the 1st WP Offer did not intend to include paying P’s costs but “are instructed to make a further offer to your client on a WP basis that in addition to the said offer…, our client shall pay your client’s costs of the Action, to be taxed if not agreed, in full and final settlement of all your client’s claims in the Action.” (D’s Further Offer”). D further imposed a deadline of 14 days “failing which such offer shall lapse without further notice”.
23 Dec 2015	RHC on P’s instruction ‘accepted’ the following terms in full and final settlement of this action, which read as follows: “Our client accepts Option (a) set out in your letter of 10th Dec 2015, on the terms that your client and/or its agents shall at your client’s own labour costs and expenses carry out all necessary repair and rectification works to P’s new wall … employing reasonably competent and good workmanship and to a reasonably good condition, so as to make good the existing defects as set out in paragraphs 11(a) to (c), 12(a) and (b) and 14(a) to (d) of the Statement of Claim to the reasonable satisfaction of our client, with tiles to be provided by our client;”. In addition to this, P agreed to have his costs of the action to be paid by D on a party and party basis to be taxed if not agreed. (“P’s Settlement Proposal”)
6 Jan 2016	D replied by asking for more time to consider P’s Settlement Proposal.
20 Jan 2016	D rejected P’s Settlement Proposal as “such elaborated and modified terms of settlement, in particular, the carrying out of foundation works for the subject wall, are unreasonable and overly onerous to our client and therefore not acceptable to our client.” Nonetheless, “D made a counter-proposal to your client in full and final settlement of the whole of your client’s claim in the Action: - (a) Our client shall at our client’s labour costs carry out the necessary works to the subject wall to repair the crevices and cracks on the subject wall with plastering; and (b) Our client shall pay your client’s costs of the Action to be taxed if not agreed.” (“D’s Counter-Proposal”) D also indicated their intention to defend the Action should D’s Counter-Proposal be rejected or they do not hear from P within 14 days.
4 Feb 2016	In the 1st paragraph of RHC’s letter to D, P expressed that he did not agree to P’s Settlement Proposal being elaborated or overly onerous. The 2nd paragraph explained the need of employing the adjective ‘reasonable’ in the context of this case to safeguard P’s interests. Notwithstanding the 1st and 2nd paragraphs of the letter, P confirmed in paragraph 3 of the letter that “he will supply the tiles for the proposed repair works, while your client shall carry out plastering (with adhesives) and shall commence the works after the 15th day of the 2nd month of the Lunar New Year which works shall be completed within one month”. And in paragraph 4, “The other terms set out in your said letter are agreed.” (“P’s Counter-Offer”) P also in paragraph 7 requested D to serve their Defence within 28 days should P’s Counter-Offer be rejected.
18 Feb 2016	D rejected P’s Counter-Offer
26 May 2016	1st Sanctioned Payment of HK$48,000 was made by D (“1st Sanctioned Payment”)
23 Sept 2023	P made a sanctioned offer of HK$300,000 plus costs to be taxed if not agreed
31 May 2024	D offered HK$100,000 to settle P’s claim (costs included) (D’s 1st Offer”)
2 June 2024	P rejected D’s 1st Offer
5 June 2024	D offered HK$150,000 to settle P’s claim (costs included) (D’s 2nd Offer”)
17 June 2024	P rejected D’s 2nd Offer
8 July 2024	Pre-Trial Review of the Action

Should there be a Cut-Off Date and if so, when should it be?

26.  As seen from above, there were active negotiations between parties from 10 December 2015 to 18 February 2016, and it was regrettable to see from the correspondence that the parties were so close to settlement but not be able to achieve so. Mr Lok urged the Court to adopt the date where the 1^st WP Offer was made as the Cut-Off Date, if not, the date of D’s Counter Proposal because P has failed to beat these said offers.

27.  Paragraph 13 in Bright Gold Ltd v Mega Well Development Ltd [2019] 3 HKLRD 868 demonstrated that the failure in beating a favorable settlement offer is not the only evidence the Court should look into, but also to examine if parties’ conducts and negotiations were made in good faith, such as making constructive responses. I reject D’s contention that P’s rejection of D’s Counter-Proposal being unreasonable and in fact, I found the terms in P’s Counter-Offer being pragmatic with a view to clarify any further ambiguities. It was plain that the objectives of P’s letter dated 4 February 2016 was to first, accept D’s Counter-Proposal and secondly, to impose a timeframe for D’s labour to complete the work. With the benefit of understanding the background of this case, one could see P spent years in pursuing some constructive solutions from D to his problems and it is perfectly reasonable for P to suggest a timeframe for D to complete the work. Such “additional term” is not only not onerous, but the utmost basic and essential term to any good construction agreement.

28.  While D tried to highlight P’s ‘non-compromising’ stance in P’s Counter-Offer (that P would expect D to file Defence should P’s Counter-Offer be rejected), these are in fact similar wordings that been employed by D in their letter of D’s Counter-Proposal. I was indeed surprised that D would refuse to accept or explore further negotiations on the time frame proposed by P should they genuinely wish to find a resolution.

29.  On another hand, there was no forceful arguments put forward by Ms Chan to suggest it was ‘natural and reasonable’ for P to reject D’s 1^st Offer which beat the final award made by the Court. I consider it is fair to have P to bear all the costs on the date where he rejected D’s 1^st Offer, ie on 2 June 2024 and the Cut-Off Date should therefore be 1 June 2024.

Should costs incurred after the Cut-Off Date be on indemnity basis?

30.  The next question is whether P is to bear D’s costs on an indemnity basis or not, and in the exercise of my discretion, I must give effect to the underlying objectives as required under O 62, r 5(1) and O 1A, r 2(1) of the Rules of the District Court (Cap 336H) (“RDC”).

31.  My answer to indemnity costs is a ‘no’ after making the following considerations. First and foremost, neither D’s 1^st Offer nor D’s 2^nd Offer were sanctioned offer under O 22 of RDC, but only offers made “without prejudice save as to costs”, ie the Calderbank offer. Thus, pursuant to RDC O 62 r 5(1)(d), the Court may not take these offers into account if, at the time they were made, the party making them could have protected his position as to costs by means of a sanctioned payment or a sanctioned offer under O 22.

32.  Further, in paragraph 16 of Ma King Huen v The Sincere Co Ltd (No 2) [2024] 3 HKLRD 217, DHCJ Burns SC stated that:

“I entirely accept that failure to respond constructively to a reasonable Calderbank offer coupled with the subsequent failure to beat the offer should be taken into account by the court in exercising its discretion as to costs. However, whether or not that should warrant an award of indemnity costs must depend on whether it can be shown that the case has some special or unusual feature (eg where there has been something improper or inappropriate or wholly unreasonable in the conduct of the proceedings.”

33.  Paragraph 17 of the same judgment referred to paragraph 19 of Heung Wing Yan v Hangway Housing Management Ltd [2017] HKEC 253, where DHCJ Marlene Ng (as she then was) stated:

“Although the discretion to award indemnity costs is unfettered and uncircumscribed, there must be some special or unusual feature in the case to justify an order for indemnity costs… But such conduct must be “unreasonable to a high degree; unreasonable in this context certainly does not mean merely wrong or misguided in hindsight… it will be a rare case indeed where the refusal of a settlement offer will attract … mot merely an adverse order for costs, but an order on an indemnity rather than standard basis”. Further, whilst pursuit of a weak claim will not usually, on its own, justify an order for indemnity costs, the pursuit of a hopeless claim (or a claim which the party pursuing it should have realised was hopeless) may well lead to such an order.”

34.  I do not see any conduct of P can be described as improper or unreasonable but his refusal in accepting D’s 1^st Offer at most reflected his optimism in his claim, which is commonly found in many litigants. Neither do I consider that P’s claims put forward in these proceedings were so unmeritorious such as to justify such an order. Accordingly, I decline to accede to D’s case as to indemnity costs.

Should costs be apportioned?

35.  As to costs incurred prior to the Cut-Off Date, D urged the Court to embark on an exercise of apportionment to reflect the order in the Judgment that P only ‘won’ in his claim of the tiling work, and thus D should be awarded with costs of all other dismissed claims.

36.  Apportionment of costs is a matter of discretion. Mr Lok proposed that the Court should adopt an ‘issue-based approach’ by reference to the Judgment and respective Counsel’s submissions. While the Court did decide on few issues in the Judgment, which included the foundation, tiles and tiling work, the quality and workmanship of D’s Repairment and assessment of damages, I incline to view that all these issues were stemmed from one verbal agreement between the same parties, and my findings were based on some weighing exercise of the overall credibility of witnesses and evidence against the same background. As such, I do not believe the question of apportionment could be approached on an arithmetic basis but preferred my earlier decision that each party to bear their own costs.

The Scale of Costs

37.  In such premise, there is no need to consider the scale of costs that D liable to pay incurred prior to the Cut-Off Date. In the event that I am wrong that costs should be apportioned and D was to pay the suggested portion of costs to P, the ultimate question for the appellate court is whether it was reasonable for P to commence and persist in pursuing the present action in the District Court.

38.  In Sri Purwati Muhasim v Secretary for Justice sued for and on behalf of Director of Immigration [2024] HKDC 1314, HHJ G Chow explained in paragraphs 28 and 29:

“28. In considering whether it was reasonable to commence the proceedings in the District Court as opposed to in the SCT, the most important question is whether the plaintiff enjoyed reasonable prospect to recover more that the limit of the SCT: see Cheung Yu Tin, §§31 and 47; May Fung Co Ltd, §20; Wong Chim Hing, §§18-19 and 23; and Sundari, §§20-21.

29. However, there may also be other considerations such as the complexity of the factual and legal issues involved and the need for legal representation: see Wong Chim Hing, §21. That said, as held by His Honour Judge Andrew Li in Sundari, there can be no suggestion that the SCT is not a suitable forum for simple unlawful detention claims or that plaintiffs who are not legally represented in the SCT would have difficulty in prosecuting their claims in the SCT. Assistance may be sought from other resources such as Free Legal Advice Scheme of the Duty Lawyer Service or other pro bono services in our community (see §§28, 40-42). In any event, in the present case, these are not matters relied upon by P for commencing these proceedings in the District Court.”

39.  As explained in paragraph 34 above, I do not consider P’s conduct in this case be seen as improper or his claims were so unmeritorious that he ought to commence the proceedings in the SCT. I am therefore not persuaded by D that they should pay costs to P on the SCT scale should apportionment is found to be necessary.

D’s complaint of P’s conduct in obtaining and furnishing transcript of the trial

40.  The hostility between the parties rose over the transcript of the trial (“the Transcript”) during the preparation of their respective submissions for P’s Summons. In gist, D’s complaints were first, P’s application and communication with the Court for the Transcript was made ex-parte without noticing D; secondly, P failed to provide a copy of the Transcript to D prior to or at the time of service of the Submissions of P’s Summons; and thirdly, the request P made to D to provide the Transcript with the condition of paying the copying charges.

41.  Authorities were submitted to the Court by D to support their contention that the application of Transcript should be made on an inter-parte basis. I found those authorities were of little assistance.

42.  The proceedings of an action come to an end upon the delivery of the judgment, with costs being the only outstanding issue. The application of the Transcript was granted with a view that such request was to assist P in deciding whether to appeal against my Judgment. It is not matters of substance or procedure, and I do not consider D’s consent is relevant in this matter. The Court has the discretion in making such decision even D objects to it.

43.  However, the Transcript becomes matter of substance once P decided to rely on it in their submissions in support of their appeal summons. The failure in providing a copy of the Transcript to D would deprive the other party the opportunity to consider, review and rely on matters that arise from the Transcript. It is sheer common sense that the Transcript should be made available by P to both the other party and to the Court at the time when they serve the submissions.

44.  P filed their submissions for P’s Summons on 8 July 2025 and D requested the Transcript on the preceding day. P reverted to D’s request on the even date and notwithstanding the protests they made about the ‘unilateral application’, P agreed to “send you a copy of the transcript tomorrow, subject to your undertaking to pay reasonable photocopying charges”.

45.  Further correspondence were made between parties on 10 July 2025 arguing about first, whether the ex-parte application for Transcript was one made improperly and secondly, whether D should undertake to pay for the copying of the Transcript.

46.  The Transcript was nonetheless dispatched to P on the same date without D making any undertakings of payment. In my letter dated 22 July 2025 in response to D’s complaint lodged on 14 July 2025, I already extended the time for D to file and serve their written submissions by 7 days. I also ordered that the costs of the charges on photocopying the Transcript and costs of and incidental to the application of the Transcript and the time extension application in respect of the D’s written submission be dealt with on papers in this decision.

47.  To answer the above questions, I now ordered that first, the photocopying charges of the Transcript shall be costs in the cause of P’s Summons. Since P lost in their appeal summons, D is not liable for the photocopying charges incurred. Secondly, the saga of this whole matter stemmed from the fact that P did not enclose the Transcript to D (nor the Court) when serving their submissions, which they should. I therefore order costs of and incidental to the matter arising from the missing Transcript be to D, summarily assessed at HK$5,000.00 (which involved 5 letters with some repetitive contents, time extension application and research on authorities which this Court did not find helpful). This order, from my view, must put an end to this matter.

Conclusion

48.  P’s Summons for leave to appeal is dismissed with costs to the D with certificate of one counsel, to be taxed if not agreed.

49.  In respect of D’s Summons, the Court made the following orders that:

(i)  Each party bears their own costs up to 1 June 2024;

(ii)  P should pay D all costs incurred from the date where P rejected D’s 1^st Offer, ie 2 June 2024 with certificate of one counsel on a party-to-party basis, to be taxed if not agreed; and

(iii)  D did not successfully obtain all they asked for in the variation of costs summons and I view that there is nothing unjust to have each party bearing their own costs for D’s Summons.