NTT DATA HONG KONG LTD v. OCTO3 LTD AND ANOTHER

CACV 58/2018 & CACV 59/2018
(Heard Together)

[2018] HKCA 391

CACV 58/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 58 OF 2018

(ON APPEAL FROM HCA NO 3446 OF 2016)

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AND

CACV 59/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 59 OF 2018

(ON APPEAL FROM HCA NO 44 OF 2017)

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D E C I S I O N

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Hon Poon JA (giving the Decision of the Court) :

1.  By a judgment dated 17 May 2018, we allowed Octo’s appeal and made an order nisi that NTT is to pay Octo costs below and on appeal, with a certificate for two counsel for the appeals, to be taxed if not agreed.  Octo applied to vary the costs order nisi so to have the costs awarded in its favour summarily assessed.  Having considered the parties’ written submissions, we are not persuaded to accede to Octo’s application for the reasons given below.

2.  The main reason why Octo wanted summary assessment is that because of its current financial difficulties, it would be highly prejudicial to Octo if it were prevented from recovering its costs until the conclusion of the actions.  Octo alleged that without immediate recovery, it might be wound up before trial and the liquidator might decide not to continue participating in the actions, resulting in NTT’s victory.  Self-evidently, Octo’s understanding of the effect of the costs order nisi is that it could only recover the costs after the conclusion of the actions.  In other words, the costs order nisi is to award costs to it in any event.  But that understanding is erroneous.  We did not make an order that Octo would only recover the costs in any event or after conclusion of the actions.  As it now stands, the costs order nisi entitles Octo to have the costs paid forthwith and taxed, if not agreed.

3.  Further, we agree with NTT’s submission that the costs claimed by Octo are substantial and will most likely be highly contentious.  They are therefore not suitable for summary assessment.

4.  In consequence, we dismiss Octo’s application and make the costs order nisi absolute.  We further order Octo to pay NTT costs of the present application, to be taxed if not agreed.