LAU TIN CHEUNG v. TIANJIN DEVELOPMENT HOLDINGS LTD

HCMP 1018/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1018 OF 2015

(ON AN INTENDED APPEAL FROM HCA NO. 422 OF 2011)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an application by the Plaintiff in HCA 422 of 2011 for leave to appeal against the decision of L Chan J [“the Judge”] on 18 February 2015 granting interim stay of execution to the Defendant and ordering that the Plaintiff to pay the costs of the hearing on 18 February. The Judge also made no order on the summons of the Defendant on 11 February 2015 for an injunction to restrain the Plaintiff from presenting a winding-up petition against the Defendant.

2.  Leave to appeal was refused by the Judge on 13 April 2015. 

3.  The interim stay was meant to be an interim measure pending the hearing of the renewed application for stay by the Court of Appeal.  On 28 April 2015, Cheung JA heard that renewed application and granted the stay.  The Plaintiff therefore abandoned the application for leave to appeal against the grant of interim stay by the Judge.

4.  In substance, the only significance of the remaining parts of the application is the order for costs.  Given the circumstances leading to the grant of interim stay instead of making an order on the Defendant’s injunction summons, we do not think there is much to be gained by granting leave so that counsel can debate in the Court of Appeal (with the attendant costs and time spent thereon) whether the summons should have been dismissed instead of no order being made on it.  In our view, a more realistic way to look at the matter is to regard the summons as being amended to pray for interim stay.  In any event, the only practical significance is costs.

5.  The Judge had duly taken account of the mistake in the injunction summons and he gave the costs of the summons to the Plaintiff, but ordered the costs of the hearing to the Defendant because counsel for the Plaintiff chose to oppose interim stay and at the hearing most of the time was spent on that issue. 

6.  It is well established that the Court of Appeal will not disturb an order as to costs lightly.  It is beside the point whether we would have made the same order as the Judge.  Despite the submissions of Ms Ho, we do not regard it as reasonably arguable that the Judge acted contrary to principle or took account of irrelevant matters or failed to take account of relevant matters in making the order for costs as he did.  The intended appeal has no prospect of success. 

7.  We therefore refuse to grant leave to appeal to the Plaintiff. 

8.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request our refusal of leave to be reconsidered at an oral hearing inter partes.

9.  We are indeed surprised that the Plaintiff deemed fit to continue with the application after the refusal of leave by the Judge on 13 April 2015 and the decision of Cheung JA on 28 April 2015.  As it had been said repeatedly, a party who failed to get leave at first instance should carefully reflect on the merit of his case before renewing his application for leave in the Court of Appeal.  This is particularly so when the intended appeal is to challenge decision involving the exercise of discretion including order for costs. 

10.  This court adopts a robust attitude towards hopeless applications for leave to appeal as it is a diversion of valuable judicial resources which could usefully be spent on other cases.  In line with the spirit of the Civil Justice Reform, unmeritorious applicants in these applications will usually face orders for costs on indemnity basis, see Cheung Shuk Mei v Poon Kin Fai HCMP 1705 of 2014, 4 Sept 2014; Motorola Solutions Credit v Uzan HCMP 1237 of 2014, 26 May 2014 and Compania Sud Americana de Vapores SA v Hin-pro International Logistics Ltd HCMP 1932 of 2014, 16 Oct 2014, Good Form Company Ltd v Cheung Wai Han  HCMP 3153 of 2014, 16 Jan 2015. 

11.  Solicitors acting for an applicant intending to renew an application for leave should bear these observations in mind and should advise their clients accordingly before launching such application after the refusal of leave by the courts below. 

12.  We order the Plaintiff to pay the costs of the Defendant in this application on indemnity basis.

13.  Solicitor for the Defendant has put in a statement of costs in the total amount of $46,330 of which counsel’s fee account for $20,000.  Having regard to the complexity of the matter and the contents of the statement of opposition, and the fact that the legal team was also involved in respect of the previous applications before the Judge and Cheung JA, we think the fees charged by the solicitor is unreasonably high even on indemnity basis.  We would reduce the total amount of costs to $38,330.