WONG CHUNG HON AND ANOTHER v. TSE WAI SHUM AND OTHERS

HCCW 181/2020

[2021] HKCFI 1823

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) PROCEEDINGS NO 181 OF 2020

____________________

____________________

____________________

______________________________

REASONS FOR DECISION ON COSTS

______________________________

1.  I have before me a summons dated 24 March 2021 issued by the 1^st and 2^nd Respondents seeking costs of the petition under HCCW 181 of 2020 (“the Petition”) against the 1^st and 2^nd Petitioners (“the Summons”).

2.  On 10 February 2021, this Court handed down its decision on the 1^st and 2^nd Respondents’ application to strike out the Petition (“the Decision”). In paragraphs 36 and 37 of the Decision, this Court made an order in terms of paragraphs 1 and 4 of the 1^st and 2^nd Respondents’ striking out summons and made a costs order nisi that costs of and occasioned by the striking out summons to be paid by the Petitioners to the 1^st and the 2^nd Respondents forthwith, to be taxed on a party to party basis, if the parties cannot agree. The costs order nisi was then made absolute within 14 days from the date of this Court’s orders as no parties applied to vary the same within the 14-days period.

3.  At the hearing, the only summons before this Court was the 1^st and 2^nd Respondents’ striking out summons. The Petition was not listed before this Court and the 1^st and 2^nd Respondents did not seek costs of the Petition during the hearing. The 1^st and 2^nd Respondents also did not seek to vary this Court’s costs order nisi within the 14-days period to include the costs of the Petition.

4.  Mr Wan for the 1^st and 2^nd Respondents submitted that this Court has the inherent jurisdiction to make further costs orders at any stage of the proceedings. Mr Wan relied on Order 62, rule 4(1) of the Rules of High Court.

5.  Mr Wan for the 1^st and 2^nd Respondents also sought a costs order on indemnity basis against the 1^st and 2^nd Respondents in respect of the Summons on the basis that the 1^st and 2^nd Petitioners should not have objected to the same. Unnecessary expenses were hence incurred to which the 1^st and 2^nd Petitioners should bear the same. 

6.  Mr Ho for the 1^st and 2^nd Petitioners took a neutral stance in respect of the Summons but submitted that the subject matter of the Summons should be dealt with during the hearing of the striking out summons and should not be subject to a separate application.

7.  I am of the view that an order should be made in terms of paragraph 1 of the Summons. The 1^st and Respondents should be entitled to the costs of the Petition which was struck out. As to the quantum of such costs, the same should be subject to taxation. Mr Wan for the 1^st and 2^nd Respondents indicated a sum of HK$400,000. I find that to be excessive but should leave this matter for the taxing master to decide.

8.  In respect of the costs of the Summons itself, I am of the view that the 1^st and 2^nd Respondents should also be entitled to costs but not on an indemnity basis. Whilst I agree that the solicitors of the 1^st and 2^nd Petitioners could have acted more maturely and reasonably by agreeing to paragraph 1 of the Summons and this matter could then be dealt with by way of a consent summons, I also take into account the fact that the 1^st and 2^nd Respondents could have dealt with the costs of the Petition at the last substantive hearing and thereby save the costs of both parties. This is not a suitable case for costs to be awarded on an indemnity basis.

9.  In any event, I decide to assess the costs of the Summons on a summary basis and assess it at HK$35,000. For such a simple summons, I do not find it necessary to have a set of costs for solicitors and a set of costs for counsel.

10.  For the reasons stated above, I make the following orders:

(1)   Order in terms of paragraph 1 of the Summons;

(2)   A sum of HK$35,000 to be paid by the 1^st and 2^nd Petitioners to the 1^st and 2^nd Respondents forthwith.