LEUNG KWAI LING, L v. FAIRBAIRN CATLEY LOW & KONG AND ANOTHER

HCA 1568/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1568 OF 2011

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D E C I S I O N

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1. There are three appeals by the plaintiff and one application by the defendants. The 1st appeal is against a charging order nisi given by Master de Souza on 12 July 2012 that charged on the plaintiff’s interests on 1st Floor, Kan Oke, 28A Tai Hang Road, Hong Kong (hereafter called the “Property”). The order was made to secure the payment by the plaintiff of costs due under 6 costs orders. The orders were made from 20 January 2012 to 27 June 2012. The total sum due under the orders exclusive of interests is HK$210,600.

2. This order was made absolute by Master K Lo on 10 August 2012 at the end of an inter partes hearing.  Master Lo also ordered the plaintiff to pay HK$7,000 costs for the application which I understand from the solicitors for the defendants that the costs for preparing the release upon full payment was included therein.  This order absolute is the subject matter of the plaintiff’s 2nd appeal.  The plaintiff also appeals against the costs order for payment of HK$7,000.

3. On 21 August 2012, Master de Souza made another charging order nisi against the plaintiff that also charged on the plaintiff’s interest in the Property.  This order is to secure another costs order dated 17 July 2012 that required the plaintiff to pay the defendants HK$20,000.  This order is the subject matter of the plaintiff’s 3rd appeal.

4. The inter partes hearing for this 2nd charging order nisi was held on 14 September 2012 before Master Hui who adjourned it to today for me to decide it.  If I should allow the plaintiff’s 3rd appeal, then the 2nd charging order nisi will be set aside and I will not need to consider whether to make it absolute.  However, if I should dismiss the plaintiff’s 3rd appeal, then I will have to consider whether to make this order absolute.

5. It appears from the plaintiff’s notices of appeal that she objects to the orders nisi to have been made ex parte without her prior knowledge and presence at the hearing.  But that is the standard procedure.  If she has any reason to object to the orders, she can always show cause to oppose the orders nisi from being made absolute.  That is what she had done at the inter partes hearing of the 1st order nisi.

6. Her 2nd objection seems to be because the orders are charged on the Property which is her home.  However this is a matter permitted by the law and that the court cannot dictate which property of hers that the creditor can charge. 

7. The plaintiff in the course of my delivery of the decision raised the additional point that it is not necessary for the defendants to have applied for the 2nd charging order nisi because there is already the 1st charging order.  However, I cannot accept this argument because the 2nd charging order nisi is to secure the payment of another costs order which has been outstanding and it is the defendants’ liberty to do so and is not a matter that the court can stop the defendants from doing. 

8. There is no other reason that the plaintiff has advanced for the appeals.  In the premises I do not think there is any reason to support her appeals and I dismiss them.

9. I now come to consider whether to make the 2nd charging order nisi absolute.  Since the plaintiff has not paid the costs due under the costs order as charged by this order nisi,my only option is to make the order absolute and I do so now. 

10. I now consider the question of costs for these appeals and the application to make the charging order absolute.  Since the plaintiff has lost the appeals and also her opposition to make the 2nd charging order absolute, the general rule requires that the cost should follow the event, namely, that she should also pay the costs of the appeal and her opposition to making the charging orders absolute.  

11. I now proceed to have a summarily assessment of these costs.  The amount of costs as summarily assessed by me for the three appeals and the application to make of the 2nd charging order absolute and also the costs for release if full payment for the 2nd charging orderabsolute should be made in future is the total sum of $22,000.