RICH METRO LTD v. THE INCORPORATED OWNERS OF KA MING COURT CASTEL PEAK ROAD

DCCJ 3905/2014

[2018] HKDC 498

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.3905 OF 2014

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DECISION

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1.  By my judgment handed down on 28 Nov 2017, I awarded damages in total sum of $173,961 together with interest[1] in favour of the plaintiff flat owner against the defendant incorporated owners to compensate the former for loss and damage it suffered as a result of the latter’s breach of statutory duty and made costs order nisi that the costs of the action, including all reserved costs and costs of the trial, together with certificate for counsel, be paid by the defendant to the plaintiff, to be taxed if not agreed (the costs order nisi). Both parties now apply to vary the costs order nisi and, in the case of the plaintiff, also the interest provision in my judgment.

Plaintiff’s application

2.  By summons filed on 11 Dec 2017 (plaintiff’s summons), the plaintiff sought (1) indemnity costs as from early Dec 2014; (2) enhanced interest on the aforesaid indemnity costs; and (3) enhanced interest on the judgment sum as from early Dec 2014.

3.  Plaintiff’s solicitor, Mr Ng Wai Kit, filed his 2^nd affirmation on 20 Mar 2018 in support thereof. He relies on defendant’s non-acceptance of plaintiff’s settlement offer by letter dated 5 Nov 2014 (plaintiff’s offer)[2] said to be more advantageous than my judgment and O.22 r.24 of the Rules of District Court (RDC).

4.  Plaintiff’s offer is that the defendant shall pay the plaintiff a sum of $120,000 in settlement of the whole of the plaintiff’s claim, inclusive of interest, and that the said settlement sum shall be paid within 14 days of the defendant’s acceptance of plaintiff’s offer.

Defendant’s application

5.  By another summons filed on 12 Dec 2017 (defendant’s summons), the defendant applied for no order as to costs of this action. Defendant’s solicitor Ms Lo Eva Chuk Yee (Ms Lo) filed her affirmation on 21 Mar 2018 in support thereof and in opposing plaintiff’s summons.

6.  Ms Lo put forward a number of matters in her affirmation to suggest that it would be “unjust” for defendant to bear indemnity costs and enhanced interest as from early Dec 2014, and that it would be more appropriate to make no order as to costs of the action.

7.  It was alternatively suggested by Ms Lo that (1) indemnity costs and enhanced interest should only accrue as from Mar 2016; (2) the plaintiff be deprived part[3] of its costs; and (3) enhanced interest be awarded on the balance of judgment sum after deducting defendant’s sanctioned payment of $38,000 paid into court on 20 Jan 2016 (defendant’s sanctioned payment).

8.  On the hearing before me, Ms Lo appeared on behalf of the defendant whereas counsel Mr Vincent Li (Mr Li)[4] appeared for the plaintiff.

9.  It was agreed between Mr Li and Ms Lo that notice of defendant’s sanctioned payment was given by way of letter dated 21 Jan 2016 of defendant’s solicitors to plaintiff’s solicitors[5], whereby defendant gave notice of its intention to apply to court under proviso of O.20 r.20(1), RDC, for no order as to costs on plaintiff’s acceptance of defendant’s sanctioned payment[6].

Discussion

10.  I have carefully considered all evidence, submissions and authorities of both parties. I have reminded myself the following applicable rules of court and legal principles.

Relevant rules & principles

11.  O.22, r.24, RDC applies where the judgment is more advantageous to the plaintiff than the proposals contained in a plaintiff’s sanctioned offer, in which case this court “shall” make orders of indemnity costs and enhanced interest “unless it considers it unjust to do so”. In considering whether it would be unjust or not, this court “shall take into account all the circumstances of the case”, including 4 specific matters set out in para (5) thereof[7].

12.  By O.62, r.3(2), RDC, this court “shall, subject to this Order, order the costs to follow the event, except when it appears … that in the circumstances of the case some other order should be made as to the whole or any part of the costs”. Under r.5(1), in exercising its direction, this court shall take into account (aa) the underlying objectives[8]; (b) any payment of money into court and the amount of such payment; (e) the conduct of all the parties[9]; and (f) whether a party has succeeded on part of his case, even if he has not been wholly successful.

13.  The general rule of costs following the event does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or costs of the proceedings he may be deprived of the whole or a part of his costs: In re Elgindata Ltd. (No.2) [1992] 1 WLR 1207, 1214B per Nourse LJ.

Plaintiff’s offer more advantageous

14.  It is not disputed that plaintiff’s offer complies with the form and contents of sanctioned offer prescribed by O.22 r.5, RDC and I find it to be plaintiff’s sanctioned offer.

15.  Again, it is not disputed that plaintiff’s offer was served on defendant’s solicitors by way of post on 5 Nov 2014. I accept, under O.22, rr.12 & 16, RDC, that the defendant could have accepted plaintiff’s offer without requiring leave of court within 28 days of its service i.e. by 5 Dec 2014.

16.  Neither does the defendant challenge plaintiff’s contention that my judgment is more advantageous to the plaintiff than the proposals contained in plaintiff’s offer. In absolute amount, the judgment sum of $173,961[10] awarded by me exceeds plaintiff’s offer of $120,000[11] by an amount of $53,961.

17.  Hence, I agree with Mr Li that O.22 r.24, RDC, applies to this action. For purpose of r.24, the crux is whether it would be “unjust” to make orders of indemnity costs and enhanced interest, failing which this court “shall” make such orders.

18.  In analyzing below such matters urged upon me on behalf of defendant which, it is argued, make it “unjust” to so order as prayed for by the plaintiff (and, more appropriately, to make no order as to costs), I shall adopt the same abbreviations used in my judgment.

Alleged “unjust” matters

Insufficient information

19.  Ms Lo first submitted, when plaintiff’s offer was made in Nov 2014, the only information available to defendant was the Statement of Claim dated 14 Oct 2014. The defendant, she argued, therefore did not have sufficient information (such as witness statement and defendant’s expert opinion all filed in 2015) to assess plaintiff’s offer and to review the strength and weakness of the parties’ cases.

20.  I do not agree with this submission.

21.  As can be seen from numerous parts of my judgment, water seepage to Flat 10D originating from the roof layer, and the problem of frequent lift breakdowns, began as early as in 2010[12] and Mr Lau had since then persistently complained orally[13] and in writing[14] to the defendant and the Manager, and provided them with information about plaintiff’s claims[15].

22.  As early as on 9 Jan 2013, plaintiff’s solicitors had sent letter before action to the defendant for the subject complaints[16]. On 30 Apr 2013, the plaintiff also issued proceedings at SCT against the defendant for the subject complaints[17].

23.  Mr Lau had further passed on to the Manager complaint letters the plaintiff received from plaintiff’s tenants as early as on 24 May 2013[18] and that gave notice to defendant of such claim of loss of rental suffered by the plaintiff.

24.  And the plaintiff had submitted to the Manager survey report of Flat 10D prepared by its surveyor i.e. Mr Stewart Wong as early as on 24 June 2013[19]. Such report gave particulars to the defendant of such plaintiff’s claims in terms of reinstatement works and costs of repairs to Flat 10D.

25.  Such numerous and persistent complaints of plaintiff were recorded in minutes of meetings of the MC and of meetings of the defendant owners (after they were discussed and considered in such meetings when staff of the Manager and/or defendant’s technical consultants i.e. PWL[20] and legal consultant i.e. C&K[21] were present to give professional advice to the MC and owners) over the years and in numerous incident reports[22] of the Manager (which had, on defendant’s instructions, arranged repair works to Flat 10D in 2012[23]).

26.  Importantly, the defendant had finally solved the said problems of water seepage to Flat 10D and lift breakdowns in early 2014 by instructing building contractor to complete wholesale repairs to the roof and engaging new lift contractor to finish improvement works to the lifts of the Building[24].

27.  The full Statement of Claim indorsed on plaintiff’s writ of summons issued on 14 Oct 2014 merely repeated, I think, earlier complaints of plaintiff previously received and considered by the defendant with added particulars of breaches of duty, and gave a summary of plaintiff’s many previous claims with added particulars thereof.

28.  I am fully satisfied that, against such background and history above, the defendant had adequate and sufficient information to assess the merits and quantum of plaintiff’s claim (and its defence, if any), and to assess plaintiff’s offer, notwithstanding it had not by then have prepared formal witness statements for its witnesses nor instructed liability expert to give written expert opinion.

29.  If indeed further information was required by the defendant in Nov 2014 to assess plaintiff’s offer, the defendant could have, I think, asked the plaintiff for further particulars and/or disclosure (and even more time) in do so.

30.  The upshot is that defendant never responded in Nov 2014 to plaintiff’s offer, let alone to ask for further particulars, information or time. And there is no complaint before me of the plaintiff refusing to provide any information sought by the defendant.

31.  It should be noted that, by Nov 2014, the defendant had already been represented in this action. Defendant’s solicitors filed on its behalf acknowledgment of service on 23 Oct 2014. On 13 Nov 2014 and 5 Dec 2014, orders were twice made by consent giving time extension for the defendant to file and serve Defence & Counterclaim. Unless order was made by consent on 18 Dec 2014. On 7 Jan 2015, the Defence settled by counsel was filed.

32.  Had it been required in Nov 2014 at all, defendant’s legal advisers could and would, I think, have properly advised the defendant to seek further information and/or more time from plaintiff, and/or expert advice from outside (if not from PWL), to evaluate plaintiff’s offer if the defendant saw fit to do so. This suggestion of insufficient information is, I think, no more than an excuse and an afterthought.

Early stage of proceedings

33.  Secondly, Ms Lo submitted this action had just started when plaintiff’s offer was made in Nov 2014. The parties had not yet attempted mediation. Hence, it was said to be reasonable for defendant not to accept plaintiff’s offer at such early stage in order to anticipate for further negotiations, discussion or mediation or otherwise to settle the action amicably. The parties, it was agreed before me, did undergo mediation on 22 Mar 2016 but that, unfortunately, failed.

34.  I also disagree with this submission.

35.  O.22, RDC is also, I think, a mechanism to encourage and allow the parties to come to settlement. While the defendant can explore mediation and/or embark on without prejudice negotiation with plaintiff at a later stage, the defendant could, I think, equally seize upon this opportunity of plaintiff’s offer to try to come to settlement with plaintiff at an early stage of these proceedings.

36.  By O.22 r.5(6), RDC, a sanctioned offer may be made “at any time” after the commencement of proceedings. Had the defendant accepted plaintiff’s offer within time without leave of the court in Dec 2014, the plaintiff is entitled to his costs of the proceedings up to the date upon which the defendant serves notice of acceptance[25]. And the whole of plaintiff’s claim would be stayed upon the terms of plaintiff’s offer[26].

37.  It was not suggested before me that plaintiff’s offer was not a genuine offer to settle or that its terms were unclear. Save that the claim for inconvenience and disturbance was not particularized in amount[27], the rest of plaintiff’s other heads of claims are all particularized in amounts in the Statement of Claim and they added up to $210,401[28]. Plaintiff’s offer of $120,000[29] was, I note, at a discount of over 40% of this total amount. Compared to my total award of $173,961[30], plaintiff’s offer of $120,000[31] is, I note, still at a discount of over 30% of the judgment sum.

38.  Considering the relatively modest total amount of plaintiff’s claim and the likely amount of total costs to be spent by the parties to bring the action to its final adjudication, it would, I think, be plain to parties’ legal advisers in Nov 2014 that it is a disproportionate and wasteful exercise to go to trial and that neither could emerge “full” winner at the end of the day[32].

39.  In short, the earlier the action is settled, the better, I think, it would be in the interest of both parties. In the case of Tsang Yuen Mui v 蔡嬋貞, unreported, DCCJ 1347/2008, 15 Dec 2011, cited by Mr Li, Her Honour Judge H. C. Wong also observed at paragraph 12 thereof:

“The purpose for Order 20 rule 24 was to encourage parties to settle the case whether it was early in the proceedings or close to the date of trial. There are obvious advantages in settling early for both parties in the saving of costs and early payment of the claimed sum and the relief of the stress of litigation. The same with an acceptance or making of a sanctioned offer or sanctioned payment”

40.  Save for the excuse of insufficient information, Ms Lo has, I note, offered no good reason in her affirmation or submission why the defendant could not have seized upon this early opportunity of plaintiff’s offer to resolve its long-term dispute with the plaintiff since 2010[33].

41.  The defendant simply ignored plaintiff’s offer in Nov 2014 and did not even make any counter-proposal by way of, say, sanctioned payment of a sum lower than the amount of $120,000 in plaintiff’s offer. Defendant’s sanctioned payment of $38,000 was not made until as late as Jan 2016, and the defendant did not attempt mediation with the plaintiff until as late as Mar 2016[34].

42.  Though Deputy District Judge Grace Chan said so in the context of a defendant “rejecting” a sanctioned offer, the following words of hers at paragraph 18 of CLP Power HK Ltd v Kong Chung Sang, unreported, DCCJ 2775/2010, 5 Sept 2012 (a decision cited by Ms Lo), are, I think, equally pertinent to this action:

“…a defendant is perfectly entitled to reject the sanctioned offer. But in so doing, a defendant has to accept that he has to bear the inherent risk of the plaintiff being able to prove its case successfully…at trial, leading to the consequential risk of having to pay the enhanced interest, indemnity costs and interest on costs specified... This is what we call the risk of litigation”.

43.  One trusts defendant’s legal advisers had properly advised it in Nov 2014 the consequences of its not beating plaintiff’s offer under O.22, RDC. And if I may also quote paragraph 17 of the judgment of Deputy District Judge Grace Chan in CLP Power HK Ltd, supra, about assessing the merits of parties’ cases and seeking information from the other side if the needs arise:

“If a defendant or his legal advisors has failed to take this prudent move and, after trial, finds himself being held liable for more than what is offered by way of a sanctioned offer from the plaintiff, it would be nobody but only the defendant himself to be blamed”.

44.  The fact that the defendant had later mediated its dispute with the plaintiff (but failed) does not take away the sting provided in O.22, RDC, for failing to better a sanctioned offer: Shih Pik Nog v G2000 (Apparel) Ltd [2011] 4 HKLRD 121, 125 per Bharwaney J at paragraph 7 thereof.  One cannot but agree with his lordship.

Conduct of the defendant

45.  Thirdly, Ms Lo emphasized that defendant did not simply sit there doing nothing after mediation failed. It made defendant’s sanctioned payment on 20 Jan 2016 to try settling this action without going to trial but it was not accepted by the plaintiff.

46.  Again, I must disagree. As things turned out, my judgment is much more advantageous to the plaintiff than defendant’s sanctioned payment of $38,000, all the more so as the defendant sought to ask for no order as to costs in the event of plaintiff’s acceptance of defendant’s sanctioned payment.

47.  And had the defendant accepted plaintiff’s offer in Dec 2014, the action would have been stayed on the terms of plaintiff’s offer in Dec 2014 and it would not have been prolonged to 2016 or even trial at increased costs to both parties.

Issues raised by, and conduct of, plaintiff in its claim

48.  Ms Lo next submitted that, on my judgment, the plaintiff had not made out 5 of its 6 complaints raised against the defendant. Most of the trial time, she argued, had been spent on these 5 failed complaints by having extensive cross-examination of factual and expert witness. Substantial costs could, she argued, have been saved if the plaintiff did not pursue these 5 failed complaints.

49.  I must first repeat what I have pointed out at paragraph 47 above. Secondly, the plaintiff had already on the 1^st day of trial reasonably reduced the number of its complaints by providing further particulars of defendant’s alleged breaches, thus narrowing the issues in dispute at trial[35].

50.  For the 6 complaints that were pursued at trial, I take the view that the plaintiff had reasonable cause to raise and pursue them, though 5 of them were not made out after trial due to various reasons I have explained in my judgment. Importantly, the plaintiff has emerged as the successful party after trial and the general rule, as Mr Li pointed out, is costs following the event.

51.  And I agree with Mr Li that those other 5 failed complaints are not discrete “issues” for purpose of making costs order. All 6 complaints on liability relate to the same breach of defendant’s duty under s.18(1)(a) of Building Management Ordinance, Cap.334, to maintain the common parts of the Building[36] in a state of good and serviceable repair that I found the defendant to be guilty of[37].

52.  Beldam LJ at 1218D-E of In re Elgindata Ltd. (No.2), supra made it clear that it is only if it is possible so to isolate an issue in the case that it can properly be said that it is unnecessarily pursued as having no bearing on the real questions on the suit that it would be proper to deprive the successful party of all costs of that issue. Both his lordship and Nourse LJ[38] disagreed with submission of 2^nd respondent’s counsel to treat each category of complaints of alleged unfairly prejudicial conduct[39] grouped by the trial judge as separate “issues” for the purpose of making costs orders.

53.  In my views, the 6 complaints of the plaintiff as set out by me in my judgment are so interwoven that they cannot be isolated as separate “issues” for costs purpose.

54.  For examples, the 1^st complaint[40] and the 2^nd complaint[41] both regarding localized repairs provide, I think, the background to, and are matters leading to, the 3^rd complaint of the defendant owners’ voting down wholesale repairs at its EGM[42] and they make the 3^rd complaint all the more justified[43].

55.  The 4^th complaint relates to alleged delayed commencement of wholesale repairs[44] and it is in substance a complaint about delayed remedying the 3^rd complaint[45]. My resolution of the 4^th complaint affects the period, and the amount, of loss and damage attributable to the 3^rd complaint[46]. And my resolution of the 2^nd complaint also affects my decision on Claim Nos.4 & 5[47].

56.  The 5^th complaint[48] regarding defendant’s supervision and replacement of lift contractors and the 6^th complaint[49] regarding its implementation of improvement works are nothing but assessment of defendant’s “overall” performance of maintaining reasonable lift service to its owners and occupants in different respects. Each cannot, I think, be considered in isolation from the other.

57.  Furthermore, while the parties’ pursuit of these other 5 complaints on liability had admittedly increased the length and costs of the trial, I do not think it had caused a significant increase of the same if the matter is considered carefully in the round.

58.  Most of the facts of this case are in fact not disputed and are documented in numerous minutes of the meetings of the MC and of the meetings of the defendant owners[50]. Oral factual evidence is limited to one witness for each party[51], who adopted their respective witness statements as their evidence-in-chief.

59.  For expert evidence, the defendant also elected not to call its defence expert witness. The defendant also did not challenge the core liability opinion of plaintiff’s expert witness, whose report and statements were adopted as his evidence-in-chief and whose cross-examination was    limited to a few matters of quantum[52].

60.  Defence cross-examination of plaintiff’s witnesses focused, I would observe, no less on quantum sub-issues and such questioning occupied no short period of time.

61.  In terms of timing, save for inconvenience and disturbance which allegedly began as from 2010, the 3^rd complaint pre-dated all remaining 10 heads of claims suffered by the plaintiff in or after 2012. It alone thus requires evidence on quantum to be led on almost every head of plaintiff’s claim.

62.  Accordingly, had these other 5 failed complaints on liability not been raised or pursued and the trial focused solely on the 3^rd complaint and losses caused by it, I do not think it likely that much of cross-examination of witnesses carried out, or much of the costs incurred, at trial could have been avoided or saved.

63.  Ms Lo further reminded this court that the 3^rd complaint concerns a resolution by a majority of 35 to 28 owners against wholesale repairs at an EGM on 9 June 2011 when the plaintiff failed to attend by its representative to vote or voice its concern[53], despite the resolution, if passed, would, she argued, have remedied water seepage that troubled it for years. To allow the plaintiff to have indemnity costs is, she argued, agreeing with plaintiff’s sitting back and enjoying the fruit of defendant’s fault and that cannot be right.

64.  Though it was, I agree, far from satisfactory for plaintiff’s representative not to attend the EGM in question to voice its concern and vote in favour of the said resolution, in view of the voting result, the vote of the plaintiff could not, I think, have secured the passing of the resolution concerned.

65.  As I said in my judgment, the resolution was voted down by a majority of owners notwithstanding Clover urged for its support and made clear it did not rule out legal action against the defendant, and notwithstanding Mr Chan of C&K had explained about defendant’s responsibilities, recommended its passing and specifically warned about future legal costs and increased contribution in the event of defendant losing future litigation[54]. Hence, the additional voice of plaintiff’s representative at the EMG would unlikely, I think, have changed the result of the voting either.

66.  As a “victim” owner which had in fact suffered loss and damage as a result of defendant’s breach of duty owed to it, the plaintiff had, I think, practically no choice but to resort to proceedings to seek compensation it is rightfully entitled to when the defendant declined to pay the same.

67.  At the same time, the plaintiff is unlikely, I think, to escape from its separate liability as one of many defendant owners. Such judgment sum, interest and costs of this action ordered to be paid by the defendant to the plaintiff must come from defendant’s funds, which would have been sourced from management fees and/or contributions paid or raised from its owners, including the plaintiff. Indeed, the more the defendant paid the plaintiff under my judgment, the more likely the plaintiff as one of defendant’s owners is to share.

68.  As such, I do not find it unjust not to award indemnity costs to the plaintiff in line with O.22 r.24, RDC.

Not “unjust” to make orders sought by plaintiff

69.  Having carefully and fully considered all circumstances of this case, including all matters urged by the defendant, the defendant’s sanctioned payment, the underlying objectives, the various provisions of O.62, RDC, and all 4 matters referred to in O.22 r.24(5), RDC, I do not find it “unjust” to make orders of indemnity costs, enhanced interest on such costs and on the judgment sum. As such, I am obliged to make these orders in O.22 r.24(2) & (3), RDC.

Inappropriate to make no order or deprive plaintiff its costs

70.  For the reasons above, I also do not find it more appropriate either to make no order as to the costs of the action, or to deprive the plaintiff any part of its costs, as Ms Lo urged me to do so.

O.22 r.24(2) & (3) orders

71.  As explained in the case law, these orders sought by plaintiff are not meant to be penal in nature. Rather, they aim at achieving a fairer result for the winning party[55].

Enhanced interest on judgment sum

72.  Under O.22 r.24(2), RDC, it may be ordered that interest be paid on the whole or part of the judgment sum awarded at a rate not exceeding 10% above judgment rate for some or all of the period after the latest date on which the defendant could have accepted the plaintiff’s sanctioned offer without requiring the leave of the court.

73.  This power is to redress the unfairness that damages, costs and interest will not compensate the successful claimant for the inconvenience, anxiety and distress of having to resort to and pursue proceedings which he had sought to avoid by an offer to settle on terms which (as events turned out) were less advantageous to him than the judgment which he achieved[56].

74.  Mr Li asked for enhanced interest at 5% above judgment rate (i.e. 13% p.a.) on the full judgment sum as from 5 Dec 2014 until payment. Ms Lo instead asked that enhanced interest be paid from 24 Mar 2016[57] to judgment on the balance of judgment sum after deducting defendant’s sanctioned payment.

75.  Having regard, inter alia, to the rationale of this power, I see no reason to confine my award of enhanced interest to part of the judgment sum, when defendant’s sanctioned payment was much less advantageous than my judgment. Neither should, I think, such interest be payable from such date later thanthe latest date the defendant could have accepted plaintiff’s offer without leave.

76.  For the rate of enhanced interest, considering all the circumstances including the relatively modest amount of the judgment sum[58], I agree to adopt 13% p.a. as suggested by Mr Li. Indeed, Ms Lo did not oppose this rate. I am satisfied that I can order enhanced interest on the judgment sum until payment[59] and I find it appropriate to do so in this case as submitted by Mr Li.

Indemnity costs

77.  Under O.22 r.24(3)(a), RDC, it may be ordered that the plaintiff is entitled to indemnity costs after the latest date on which the defendant could have accepted plaintiff’s sanctioned offer without requiring the leave of the court.

78.  This power is to redress the unfairness that an award of costs on party to party basis will, almost invariably, lead to the successful claimant recovering less than the costs which he has to pay to his solicitor[60].

79.  Ms Lo asked that indemnity costs be paid by the defendant as from 24 Mar 2016 whereas Mr Li asked for indemnity costs of the action as from 5 Dec 2014.

80.  Assuming that I can do as suggested by Ms Lo[61], I have no hesitation to agree with Mr Li. Had the defendant accepted plaintiff’s offer without leave of the court by 5 Dec 2014, this action would have been stayed and all the costs incurred thereafter by the plaintiff entirely avoided.

Enhanced interest on indemnity costs

81.  Under O.22 r.24(3)(b), RDC, it may further be ordered that the plaintiff is also entitled tointerest on the above indemnity costs at a rate not exceeding 10% above judgment rate.

82.  This power is to redress the unfairness that interest is not allowed on costs paid before judgment. The successful claimant who has made payments to his own solicitor on account of costs in advance of the trial will be out of pocket even if he obtains, at the trial, an order for costs on an indemnity basis[62].

83.  Mr Li asked for 4% above judgment rate (i.e. 12% p.a.). Ms Lo did not oppose it either. There being no suggestion that the plaintiff was funded by its insurer, I am satisfied that the plaintiff would have funded the trial by paying costs on account to plaintiff’s solicitors in advance. Absent detailed account of the amount of such costs paid by the plaintiff and the dates thereof, I decide, as the case law suggested[63], to award interest at half of 12% p.a. sought by Mr Li i.e. 6% p.a. on the indemnity costs I award to the plaintiff as from 5 Dec 2014. Such interest should be paid up to judgment.

Disposition

Plaintiff’s application

84.  Hence, I allow plaintiff’s summons by varying my judgment and the costs order nisi as follows:

(1) interest be awarded and payable on the said judgment sum of $173,961 at 13% p.a. from 5 Dec 2014 until payment;

(2) such costs of the action from 5 Dec 2014, including all reserved costs and costs of the trial, together with certificate for counsel, be paid by the defendant to the plaintiff on an indemnity basis, to be taxed if not agreed; and

(3) interest be awarded and payable on the said indemnity costs in (2) above at 6% p.a. until judgment.

Defendant’s application

85.  And I dismiss defendant’s summons.

Costs

86.  Costs normally follow the event. The plaintiff is the successful party in both applications before me. And I cannot see any reason why the indemnity costs ordered by me under O.22, RDC, should not be carried to these 2 applications as well.

87.  I therefore make orders nisi[64] that the costs of and incidental to both plaintiff’s summons and defendant’s summons be paid by the defendant to the plaintiff on an indemnity basis, together with certificate of counsel, to be taxed if not agreed.

88.  Finally, I thank Ms Lo and Mr Li for their assistance.