THE YIN NIN SAVINGS MORTGAGE LOAN & LAND INVESTMENT CO LTD AND ANOTHER v. OCCUPIER(S) OF PREMISES (save and except the 2nd Defendant to the 9th Defendant) AND OTHERS

CACV 240/2021
CACV 242/2021
(heard together)

[2022] HKCA 993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 240 OF 2021

(ON APPEAL FROM HCMP NO. 1739 OF 2003)

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 242 OF 2021

(ON APPEAL FROM HCMP NO. 1739 OF 2003)

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(Heard together)

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DECISION

(VARIATION OF COSTS)

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

1.  On 4 May 2022 this Court handed down our judgment allowing the two appeals brought by the plaintiffs against the decision of Lok J (“the Judge”)  given on 7 October 2021[1].   

2.  At paragraph 69 of the judgment, we made a costs order nisi that the 8^th defendant pays the 1^st and 2^nd plaintiffs the costs of the appeal before the Judge and these appeals, including the costs for the applications for leave to appeal, but limited to one set of costs, to be taxed if not agreed.

3.  By summons filed on 18 May 2022 in CACV 242/2021, the 2^nd plaintiff applies to vary the costs order nisi to the following:

“The 8^th defendant pays the 1^st and 2^nd plaintiffs the costs of the appeal before the Judge and the costs of these appeals, including the applications for leave to appeal, but limited to one set of costs, to be taxed if not agreed, and paid forthwith, with certificate for two counsel.”

4.  Pursuant to the directions given on 20 May 2022, the 2^nd plaintiff has put in a written submission and a list of authorities to support the variation application.

5.  By letter dated 25 May 2022, the 1^st plaintiff indicates that it supports the application but does not wish to take part in the application or put in any written submission.

6.  On 22 June 2022, Edmund WH Chow & Co wrote to inform the Court that they did not have further instruction to act for the 8^th defendant, and that the 8^th defendant had applied for legal aid in the action below.  However, as of now, Edmund WH Chow & Co has not taken out any application to cease to act.  They, accordingly, remain on record as the solicitors for the 8^th defendant.  Further, until the Director of Legal Aid files a memorandum of notice of application for legal aid in these appeals, the fact that the 8^th defendant has applied for legal aid in the action below will not impact on the proceedings in these appeals.  As the time for the 8^th defendant to lodge written submission (i.e. 20 June 2022)  has lapsed, we deem it that the 8^th defendant has no submission to make on the application.

7.  As no party has requested to be heard orally on this application, we will proceed to deal with the application on the papers. 

8.  By the summons, the 2^nd plaintiff seeks to include in the costs order express provisions for (1)  the costs to be paid forthwith, and (2)  a certificate for two counsel.

9.  In relation to (1), the 1^st and 2^nd plaintiffs’ appeals are interlocutory appeals.  Normally, parties are entitled to tax their costs upon the conclusion of an interlocutory appeal as it is a distinct proceeding separate from the main action: Do Ye Tong Doreen v Wai Hei Wan Wesley (No 2) [2011] 2 HKLRD 278 at [5].  The present appeals are no exception.  The insertion of the words “paid forthwith” is just for the avoidance of doubt.

10.  As for (2), the view of this Court has always been that two counsel are appropriate for appeals in this Court: Do Ye Tong Doreen v Wai Hei Wan Wesley (No 2), supra, at [7]; see also Dr Chan Hei Ling Helen v The Medical Council of Hong Kong (unreported)  CACV 403/2006, 21 July 2009, at [9] and Cheung Cho Kam Sindy & Another v Cheung Yuet Ying Rose (unreported)  CACV 178/2008, 8 December 2009, at [12].  Unless anything is said to the contrary by this Court, two counsel are to be allowed on taxation.  It is thus not really necessary for this Court to expressly order a certificate for two counsel.

11.  For the reasons given above, we allow the application in part and vary the costs order made on 4 May 2022 as follows:

“The 8^th defendant pays the 1^st and 2^nd plaintiffs the costs of the appeal before the Judge and the costs of these appeals, including the applications for leave to appeal, but limited to one set of costs, to be taxed if not agreed, and paid forthwith.”

12.  In view of the fact that the summons is not opposed, the legal position is not controversial and for the reasons we gave above, we consider it is appropriate to exercise our discretion to make no order as to the costs of this application.  And we so order.