ROBERT JOHN FRANCIS BROTHERS AND ANOTHER v. NEW RUI INTERNATIONAL CO, LTD

CACV 433/2023, [2026] HKCA 1030

On Appeal From [2023] HKCFI 3062

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 433 OF 2023

(ON APPEAL FROM HCA NO 654 OF 2023)

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DECISION ON
ASSESSMENT OF COSTS

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Hon Chu VP giving the decision on assessment of costs of the Court:

1.  On 27 November 2023, Deputy High Court Judge Le Pichon entered summary judgment in favour of the plaintiffs for specific performance by the defendant of clause 3.4.1 of the Escrow Agreement dated 23 June 2021 together and costs. The defendant appealed the decision to this Court.

2.  On 6 December 2023, pursuant to the judge’s order, a sum of HK$ 10 million, being part of the retention money held in escrow under the Escrow Agreement, was released to the plaintiffs.  Further, on 12 March 2024, the defendant paid to the plaintiffs HK$ 1.2 million, being costs awarded to the plaintiffs and assessed by the judge.  The release of the retention money and the costs payment were expressly stated to be without prejudice to the defendant’s appeal.  

3.  On 20 January 2025, this Court by majority allowed the defendant’s appeal against the judge’s decision, set aside the judge’s order and granted leave to the defendant to defend the claim of specific performance.  We also ordered the plaintiffs to pay the defendant the costs of the appeal and that the costs of the summary judgment application below be in the cause of the action. 

4.  Despite requests made by the defendant through solicitors’ correspondence, the plaintiffs did not repay the retention money and costs.  On 8 April 2025, the defendant issued a summons (“Summons”), supported by an affirmation of its handling solicitor, to apply for an order that the plaintiffs pay into court the retention money together with interest accrued thereon, and repay to the defendant the amount of costs received.  

5.  On 9 April 2025, we ordered, by way of supplementary orders to our order of 20 January 2025, that the plaintiffs pay into court to the credit of the action, pending final determination of the action or until further order, the amount of the retention money released to the plaintiffs and interest accrued thereon, and repay to the defendant the amount of costs received from the defendant.  We directed the parties to lodge submissions on the costs of the Summons.

6.  By their letter dated 21 April 2025, the plaintiffs[1] contended that there should be no order as to the costs of the Summons as it was not issued as a result of any action on their part and they did not make any opposition to it.  The defendant, on the other hand, argued that it should have the costs of the Summons, pointing to the fact that the supplementary orders were essentially the relief sought in the Summons and the plaintiffs had been warned in the solicitors’ correspondence demanding repayment that the defendant would issue an application and seek costs against them.  

7.  In the 21 April 2025 letter, the plaintiffs also requested for a 90-day extension to comply with the order of 9 April 2025, which was opposed by the defendant.

8.  On 6 May 2025, we extended the time for complying with the 9 April 2025 to 30 May 2025 and ordered the plaintiffs to pay the defendant the costs of the time extension request.  We further ordered that the costs of the Summons and the plaintiffs’ request for time extension be paid by the plaintiffs to the defendant to be summarily assessed as we considered that the Summons would not have been necessary had the plaintiffs duly returned the retention money and costs received from the defendant upon the defendant’s request.  

9.  Pursuant to our directions, the defendant had filed its statement of costs. The plaintiffs, however, have not put in any statement of opposition.

10.  We have examined the defendant’s statement of costs.  Having regard to the nature, work and documents involved in the Summons and time extension request which are not complex or voluminous, we are of the view that on party-and-party basis of assessment, the involvement of three fee-earners for the professional work (section D)  cannot be justified.  The amount for the items should be slightly adjusted downwards.   Accordingly, we assess the defendant’s costs at HK$ 47,300.