GREEN PARK PROPERTIES LTD. v. DORKU LTD.

HCA8564/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.8564 OF 1998

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J U D G M E N T

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1. This is an appeal by the defendant against the order of Mr Registrar Chan, dated 9 August 2001, ordering the defendant to make an interim payment of $1.3 million on account of the result of the review application within 28 days pursuant to Order 62, rule 9A of the Rules of the High Court.

2. The circumstances leading to this appeal may be summarised as follows. On 13 June 2000, judgment was entered against the defendant with an order nisi that costs of action and the counterclaim be to the plaintiff. The order nisi became absolute on 27 June 2000. On 23 January 2001, the plaintiff's costs were taxed as drawn per the bill in the absence of the defendant. The amount allowed was $1,828,297. On 31 January 2001, the defendant applied to review the taxation.

3. The substantive hearing on the review application took place on 16 May 2001. The learned Registrar dealt with part of the review application and directed the plaintiff to submit a taxation bundle in respect of counsel's work. He then adjourned the matter to a date to be fixed for part heard.

4. The part-heard hearing was scheduled to take place on 9 August 2001. On 8 August, the representative of the defendant, Mr Wong, wrote to the High Court requesting for an adjournment on the ground of sickness. At the hearing on 9 August, Mr Wong was absent, but an employee of the defendant, Mr Szeto was present and handed the original letter of Mr Wong's to the court. The Registrar then further adjourned the review application and made the interim order as aforesaid. He also ordered the defendant to pay the cost of the adjournment in the sum of $800.

5. Order 62, rule 9A provides :

" (1) If a party makes or resists an application at any stage of proceedings before the Court, the Court may-

(a) if the Court considers the application or resistance to the application, as the case may be, to be frivolous or vexatious; or

(b) for any other reason that the Court in the circumstances of the case considers just,

when ordering costs against that party in respect of the application, order that party to pay forthwith to any other party to the application an amount which in the opinion of the Court approximates the costs that would be allowed on taxation.

..."

6. Pursuant to Order 62, rule 34(2), the taxing master, when dealing with an application for review, may also order costs in respect of the application for review. If Order 62, rule 9A is to be applied, the costs in respect of which the court may make an interim order are the costs of the application for review, and not the costs already allowed on taxation against which an application for review is now brought.

7. As Order 62, rule 9A does not apply to the costs which have been already allowed on taxation, the learned Registrar erred in invoking this particular rule to make an interim payment order on account of the result of the review application. I will therefore allow the appeal and set aside the interim payment order.