SKYHIGH INVESTMENT LTD v. YU JUN AND OTHERS

HCCT 29/2019
HCA 1434/2019
(dealt with together)

[2020] HKCFI 2135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 29 OF 2019

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AND

HCA 1434/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1434 of 2019

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D E C I S I O N

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1.  In the Decision handed down on 1 June 2020, this Court granted the injunction orders against the 2^nd Defendant, with the order that she should pay the costs incurred after 8 October 2019 up to and including the hearing on 22 May 2020, with certificate for 2 Counsel, and the remainder of the costs of the application for the injunction to be in the cause.

2.  The nomenclature in the Decision is adopted.

3.  Skyhigh by its summons issued on 12 June 2020 seeks variation of the costs order nisi, for the costs ordered against the Daughter to be paid forthwith.

4.  I accede to this application for the following reasons.

5.  As highlighted by Skyhigh, the Court is encouraged under the CJR to order immediate payment of costs of interlocutory proceedings, as a sanction against unnecessary and disproportionate interlocutory applications and unwarranted resistance to interlocutory applications.

6.  It is apparent from the Decision that the costs incurred after 8 October 2019 were ordered to be paid by the Daughter, since Skyhigh had offered then that the Summons for interlocutory relief could be resolved by the Daughter’s Undertaking being continued until the determination of HCA 1434 and HCCT 29, but such offer was not accepted by the Daughter. If the offer had been accepted, the costs incurred from 8 October 2019 until the hearing on 22 May 2020 would have been avoided.

7.  The costs ordered against the Daughter are severable from the other costs of the action, including the remainder of the costs of the Summons. Skyhigh can easily separate the work, and the taxing Master can assess, the part of the costs incurred in relation to the period from October 2019, from the rest of the work done in connection with the Summons. This is part and parcel of the work on taxation.

8.  The costs from October 2019 to May 2020, including the costs of 2 counsel, would not be insignificant, whereas the trial of HCA 1434 will not take place in the near future, with the case management summons to be heard only in March 2021. It is unfair to deprive Skyhigh of its costs until after the conclusion of the trial, when the costs have been ordered in its favour by reason of the Daughter’s unreasonable conduct of refusing the offer made in October 2019.

9.  The only variation sought by the Summons is for the costs to be paid forthwith, and I will not make any other order on variation.

10.  The costs of the application for variation are to be paid by the Daughter and to be included in the costs to be paid forthwith.