XCHRX HOI SING CONSTRUCTION CO. LTD. (In Liquidation) v. DREYER AND CO. LTD.

HCA9969/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.9969 OF 1998

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J U D G M E N T

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1. In this case, the plaintiff claims HK$5,472,660 against the defendant. The trial is fixed for today. The defendant on 3 January 2000 paid into court HK$4,008,051.35. This was accepted by the plaintiff on 15 January 2000. The plaintiff asks that the costs orders previously made and the costs of the action to be taxed on an indemnity basis.

2. The defence pleaded that it owed the plaintiff HK$3,433,382.84. This debt was assigned by the plaintiff to another company in March 1997, and hence the plaintiff was not entitled to the claim.

3. The money paid into court was based on the debt of HK$3,433,382.84 and the interest thereof. The plaintiff contends that the defendant knew that it was bound to fail in his case, yet did not admit liability until 3 January 2000 when money was paid into court. On the plaintiff's part, it only accepted that the sum owing to it was HK$3,433,383 on 15 July 1999. The only issue then was on the assignment.

4. What the defendant paid into court recently was based exactly on the figure that the plaintiff said was owing to it by the defendant. The defendant had chosen to contest the proceedings from 15 July 1999 onwards until the recent payment into court which was three weeks before the trial. In my view, this was a complete surrender by the defendant of the action. The conduct of the defendant had forced the plaintiff to incur expenses unnecessarily in pursuing the claim from 15 July 1999 onwards. Taxation on common fund basis should be ordered on the costs that the plaintiff is entitled to in this action, including the costs order made in favour of the plaintiff by Jackson J, who reserved the basis of taxation of the costs.

5. I have no jurisdiction to vary other orders on costs which obviously were based on party and party basis.