HCA 954/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 954 OF 2010

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R U L I N G

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1.  This is an argument over the costs of an ex parte injunction which were reserved to the summons judge who was to hear the matter inter partes, and of the costs up to the day prior to the scheduled inter partes hearing when the 2nd Defendant [he being the only Defendant concerned in this] consented to the continuation of the ex parte order which was made by me on 20 August this year. The consent summons continuing the ex parte injunction is dated 26 August. The parties agreed that the issue of costs should be held over for argument and it is in this way that the matter comes before today.

2.  The action concerns the Plaintiff’s right to occupy the property in question.  She also complains, and it is this complaint which was the subject of the injunction, that the 2nd Defendant and his representatives had committed a private nuisance by harassing her in her enjoyment of the property by standing around in the lobby outside her flat and by making threats.  This prompted the urgent ex parte application to stop this behaviour, which I granted.

3.  It is said that despite being informed of the granting of the order, the Defendant’s representatives remained in the vicinity of the Plaintiff’s flat until the following morning, since when there has been no further incident.

4.  The 2nd Defendant instructed solicitors and the day before the scheduled hearing before the summons judge Sakhrani J, he consented to the continuation of the ex parte order.

5.  Mr Vincent Poon, for the Plaintiff, submitted that the correct order is that she must get her costs up to and including the obtaining of the consent order in any event.

6.  Mr Chase Pun, for the Defendant, submits that the correct and usual order should be costs in the cause including the costs reserved on the ex parte hearing.

7.  Mr Vincent Poon submits that the relief sought is distinct from the main limb of the action, which concerns the Plaintiff’s right to a life tenancy of the flat in question.  But I think that he is only partially right about that, as Mr Chase Pun has submitted, because there is also a claim for damages for private nuisance which was the subject matter of the application for the injunction.

8.  Mr Poon says that as this is a discrete matter, in which the Plaintiff has obtained the orders that she sought, costs should follow the event and that justifies her case for such an order.

9.  Mr Pun says not so.  The usual order, and there is nothing exceptional about this case to justify a departure, is one of costs in the cause.  He has drawn attention to two cases in particular which support his submission.  The first is King Fung Vacuum Ltd & Ors v Toto Toys Ltd & Ors [2006] 2 HKLRD 785, a decision of the Court of Appeal.  Rogers VP at 794D-G said this:

“The final matter is the matter of costs. The Judge made an immediate order as to costs and there was an application to set that aside. By reason of the judgment which I have already given, that order, of course, has gone. But I will say this as to the question of costs. The traditional order on interlocutory injunctions has been that the successful party in any application for an interlocutory injunction would have his costs in the cause. There is no justification if one applies American Cynamid principles for giving the successful party his costs in any event, or worse still an immediate order as to costs,, unless of course, that party has acted improperly or is in some way to be penalised. It could be, for example, that if a plaintiff seeks an interlocutory injunction and the application is totally baseless and does not even establish, for example, that there is a matter fit to be tried, that the Court would then consider that such an order might be made. But those would be very special circumstances. Normally an order of either costs in the cause, or perhaps the successful party’s costs in the cause would be appropriate.”

The other case is a decision of Horace Wong SC, DHCJ.  It is Guccio Gucci v Cosimo Ludolf Gucci & Ors, HCA 1582/2008 unreported.  At paras.21 and 22, the judge said this:

“21. At this stage I am only concerned with the making of an interlocutory injunction. All the views that I have expressed in my previous Decision and the present Decision are based on the affidavit/affirmation evidence presently before me. In that sense, my views fare provisional only. It is quite possible that when the case is fully investigated upon after trial, a different view may be taken of the case. The merits of the parties’ case can only be finally determined after trail.

22.  Subject to the considerations below, I would be minded to make an order that the costs of the injunction application to be in the cause.  Since the decision in American Cyanamid, where the plaintiff succeeds in obtaining an interlocutory injunction, an order that costs be the plaintiff’s costs in the cause is no longer regarded as usual: see, Steepleglade Limited v Stratford Investments Limited [1976] FSR 3.  Rather, the more usual order in modern days is for costs of the injunction application to be in the cause.  No doubt this reflects the Court’s recognition that the views formed by the Court at the interlocutory stage are necessarily provisional and are based solely on paper evidence. (Emphasised added)”

10.  Having regard to what was said in those two cases which is entirely in accordance with the practice of the court, overwhelmingly, this is an occasion for costs in the cause.  The merits remain to be determined at the trial.  If she succeeds, the Plaintiff will expect to get her costs of the action which will include these costs.  It is much too premature to be talking in terms of awarding her the costs of obtaining this injunction.  The 2nd Defendant has been well advised and consented to the continuation of the injunction.  Had he fought it then an order of the Plaintiff’s costs in the cause might well have been appropriate but, where he has consented, which avoided a hearing before the inter partes judge, an order of costs in the cause is the correct order, which is the order that I propose to make.  There is nothing exceptional in this matter which requires me to make a different form of order.

11.  Finally, and only for the sake of completeness, Mr Poon had suggested that the form of the consent summons on costs falls to be interpreted as meaning that costs to the Plaintiff in any event had been conceded and the hearing today was merely about quantification.  That submission, upon which I have not troubled Mr Pun to reply, is plainly incorrect.  The wording of the consent summons could not be clearer and it is obvious from the correspondence beforehand that the 2nd Defendant was contending for an order of costs in the cause or costs reserved.  He had never conceded costs.  That is all I need to say about this.

12.  I will now hear counsel on the costs of today’s argument.

Discussion on Costs

13.  Costs incurred since 26 August, including the costs of today’s hearing, are to the 2nd Defendant in any event.  Costs assessed at $35,000.