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HCMP 1484/2019, HCA 1852/2020
& HCA 153/2021 (Heard together)
[2022] HKCFI 276
HCMP 1484/2019
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 1484 OF 2019
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| BETWEEN |
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CS CREDIT LIMITED (中策信貸有限公司) |
Plaintiff
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and |
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MARSPAN LIMITED |
1st Defendant |
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CHIU MARGARET(邱美琪) |
2nd Defendant |
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HCA 1852/2020
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 1852 OF 2020
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| BETWEEN |
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TAN WAI KEE |
Plaintiff
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and |
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MARSPAN LIMITED |
1st Defendant |
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CS CREDIT LIMITED |
2nd Defendant |
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HCA 153/2021
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 153 OF 2021
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| BETWEEN |
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FAR EAST CONSORTIUM LIMITED |
1st Plaintiff |
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CIE SECRETARIAL SERVICES LIMITED |
2nd Plaintiff
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and |
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THE TRUSTEES OF THE PROPERTY OF MARGARET CHIU, A BANKRUPT |
1st Defendant |
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TAN WAI KEE |
2nd Defendant |
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MARSPAN LIMITED |
3rd Defendant |
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CS CREDIT LIMITED |
4th Defendant |
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(Heard together)
Before: Madam Recorder Sit, SC in Chambers
Date of written submissions by the 1st & 2nd plaintiffs of HCA 153/2021: 24 December 2021 & 14 January 2022
Date of written submissions by the 4th defendant of HCA 153/2021: 7 January 2022
Date of Decision: 25 January 2022
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DECISION ON COSTS
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1. I gave Judgment in the captioned proceedings on 10 December 2021 (“Judgment”).[1]
2. In the Judgment, with respect to the preliminary issues in HCA 153/2021, I found in favour of CS Credit that it is a bona fide purchaser for value without notice as against Far East and takes the Property free of Far East’s alleged equitable interest (if any), but rejected CS Credit’s arguments on estoppel with respect to the 1st Mortgage and the 3rd Mortgage. In Judgment §79(3), I made a costs order nisi that Far East and CIE pay the costs of the trial of preliminary issues to CS Credit, on the basis that CS Credit’s success on the bona fide purchaser defence results in the substantive relief it obtains vis-à-vis the Property.
3. By summons dated 24 December 2021, Far East and CIE seek to vary my costs order nisi to 50% of the costs of the trial of preliminary issues, alternatively CS Credit be entitled to costs on the preliminary issue concerning bona fide purchaser and Far East and CIE be entitled to costs on the preliminary issue concerning estoppel.
4. The parties have agreed and I have directed that the summons be disposed of on the papers. Having considered the written submissions filed by the parties, I dismiss the summons and make a cost order absolute in terms of Judgment §79(3). My reasons are as follows.
5. There is no real dispute over the applicable principles. Costs are in the unfettered discretion of the court. However, the discretion must be exercised judicially, seeking to achieve practical justice in the particular circumstances of the case. While costs normally follow the event, the court may make some other order as to the whole or any part of the costs, depending on the circumstances of the case. Order 62 rule 5(1) identifies the matters which the Court will take into account in exercising its discretion as including the underlying objectives set out in Order 1A rule 1 ((aa)) and whether a party has succeeded on part of his case, even if he has not been wholly successful ((f)). See Lui Ming Lok v Ng Im Fong Loretta [2020] HKCFI 2463, HCAP 28/2019 (unrep., 22 September 2020), §§10-11.
6. In the 2021 Action, Far East and CIE are the plaintiffs seeking (inter alia) declaratory relief against CS Credit. CS Credit as defendant resists their claims on 2 bases, the bona fide purchaser defence and the estoppel defence. Since CS Credit is successful in its bona fide purchaser defence, Far East’s and CIE’s claim against CS Credit wholly fails, and CS Credit takes the Property free. Thus, whether one approaches the matter from the perspective of “event” or Far East and CIE being successful in their “case”, it is clear that they have wholly failed as against CS Credit.
7. Further, even if one were to consider the 2 defences as separate and distinct “events” (which for the reasons above I do not consider to be the correct characterization), the estoppel defence did not take up a significant amount of time or costs as to warrant separate costs provision. It was an issued raised in pleadings but its scope was very narrow (essentially centering on a few written board and shareholders’ resolutions). That was further narrowed down at oral opening. The evidence filed by Far East and CIE in this regard was minimal and was not challenged at trial. No witness gave evidence on this aspect at trial. Both parties approached the estoppel defence substantially as one of identifying the correct legal principles to be applied to largely undisputed facts. Nor can it be said that the oral submissions on this defence took up a significant part of the trial.
8. Accordingly the summons is dismissed with costs and the costs order in Judgment §79(3) shall be made absolute.
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(Eva Sit SC) |
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Recorder of the High Court |
Mr Daniel R Fung, SC and Mr David Chen, instructed by Hon & Co, for Far East Consortium Limited (1st plaintiff of HCA 153/2021) and CIE Secretarial Services Limited (2nd plaintiff of HCA 153/2021)
Mr Victor Dawes, SC and Mr Danny Tang, instructed by Stevenson, Wong & Co, for CS Credit Limited (plaintiff of HCMP 1484/2019, 2nd defendant of HCA 1852/2020 and 4th defendant of HCA 153/2021)
[1] The definitions in the Judgment will be adopted herein.
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