KAM PAK LI INVESTMENTS LTD v. LI SUI YEE AND OTHERS

HCMP 1454/2020

[2021] HKCFI 2734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1454 OF 2020

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D E C I S I O N

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1.  On 30 June 2021, DHCJ William Wong SC ordered, inter alia, that the present proceedings shall proceed as if begun by writ (see [2021] HKCFI 1879).

2.  By a summons dated 7 July 2021, the 5^th Respondent applied for an order that the hearing date previously fixed for the hearing of the Originating Summons filed in these proceedings on 23 September 2021 be vacated. At the hearing, I made an order in terms of this summons.

3.  By a summons dated 15 July 2021, the Applicant applied to discontinue these proceedings.  The 5^th Respondent, understandably, did not oppose the application.  What remains in issue is the question of costs.  The Applicant submitted that there should be no order as to costs whereas the 5^th Respondent submitted that the Applicant shall pay the costs of these proceedings to the 5^th Respondent.

4.  Under Order 21, rule 3, Rules of the High Court, the starting point is that the party seeking to withdraw its action should pay the costs of the other party; the burden of persuading the court to depart from the general rule rests on the party who seeks to withdraw (Hong Kong Civil Procedure 2021, vol. 1, §21/5/12A at p 585).

5.  Sik Chiu Yuet (“Sik”) representing the Applicant contended that DHCJ William Wong SC had already dealt with the costs of these proceedings; and that the claim is meritorious.  It is clear that DHCJ William Wong SC had only dealt with the costs of the 5^th Respondent’s summons dated 1 March 2021 including the hearing on 24 June 2021.  It is also trite that, save in exceptional circumstances, the court cannot and will not go into the merits of the claim.  In the circumstances, I am unable to see any reason to depart from the general rule.

6.  For these reasons, in respect of the Applicant’s summons, I make the following orders:

(a)  Leave be granted to the Applicant to discontinue these proceedings;

(b)  The Applicant shall pay to the 5^th Respondent the costs of these proceedings (including all costs reserved but excluding costs which have already been dealt with by other costs orders) to be summarily assessed as follows;

(c)  The 5^th Respondent shall file and serve a statement of costs within 14 days from the date hereof;

(d)  The Applicant shall file a list of objections (if any) within 14 days thereafter;

(e)  The amount of costs to be paid by the Applicant to the 5^th Respondent shall then be determined on paper.