CHINA CITIC BANK INTERNATIONAL LTD v. DURRANT SIMON PATRICK MICHAEL

CACV 127/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 127 OF 2014

(ON APPEAL FROM HCMP NO. 3196 OF 2013)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the court):

1.  On 1 August 2017, the defendant issued three summonses in these appeal proceedings (CACV 127/2014). In one summons, he sought an order that the costs claimed by the plaintiff be denied. In the other two summonses, he sought wasted costs orders against Chan Ning Chun Charles and Hau Wing Shing Vincent. They were the solicitors acting for the plaintiff in CACV 127/2014 and the proceedings below (HCMP 3196/2013).

2.  On 7 August 2017, Master Simon Leung gave directions for the parties to lodge submissions to address the question whether these summonses should be entertained at all by the Court of Appeal as the appeal proceedings have long concluded.  We think it appropriate to deal with the applications on paper.

3.  The appeal was an appeal from the judgment of Deputy High Court Judge S T Poon on 23 June 2014, by which he dismissed the defendant’s appeal from the judgment of Master Leong on 11 February 2014 given in a mortgage action.  We heard the appeal on 17 June 2016 and judgment was given on 23 June 2016 dismissing the defendant’s appeal.  Having heard arguments on costs, we dealt with costs in the judgment and ordered him to pay the plaintiff’s costs on an indemnity basis.

4.  The defendant sought leave to appeal to the Court of Final Appeal.  On 27 July 2016, we dismissed his application for leave to appeal and his summons for stay of execution of the judgment of Master Leong pending the intended appeal.  We made an order nisi that the defendant was to pay the plaintiff’s costs of the two applications on an indemnity basis. That order became absolute after 14 days of the handing down of our judgment.

5.  On 8 December 2016, the Appeal Committee refused leave to the defendant to appeal to the Court of Final Appeal.

6.  On 18 July 2017, Master Chow, sitting as a taxing master, made an unless order in CACV 127/2014 that unless the defendant do file and serve a list of objections by 5 pm on 1 August 2017, he would be debarred from filing objections to Bill No 1 of CACV 127/2014 and Bill No 1 of HCMP 3196/2013.

7.  It would appear that the three summonses issued on 1 August 2017 was a response of the defendant to the unless order.

8.  As mentioned, Master Leung gave directions on 7 August 2017 for the parties to lodge submissions to explain why and how the summonses may be entertained, limited to five pages.

9.  The defendant did not comply with the directions and instead issued a fresh summons on 28 August 2017 seeking an order for the Court of Appeal to provide clarification of its directions dated 7 August and asking what arguments should be filed, whether relating to the filing of the three summonses or the content of those summonses.

10.  By the further directions of Master Leung on 30 August 2017, it was stated that the Court of Appeal would consider the preliminary question whether to entertain the three summonses of 1 August, that no order would be made on the defendant’s summons of 28 August save that time was extended for the defendant to lodge his submission by 14 days.

11.  On 19 September 2017, the defendant filed an affirmation of nine pages (exceeding the page limit of five as directed) instead of lodging a submission because “an affidavit is the only way [he knows] how to introduce new evidence/documents”.  Master Leung gave directions on 20 October 2017 that the affirmation of 19 September may be received only insofar as the same contains the defendant’s submissions.

12.  We have considered that affirmation, as well as the three other affirmations of the defendant filed on 1 August in support of the summonses.

13.  In short, it is the defendant’s contention that the plaintiff should be denied their costs in CACV 127/2014 and HCMP 3196/2013 notwithstanding the costs awards in the High Court and the Court of Appeal because of “improper, unreasonable and dishonest actions” by the plaintiff’s solicitors, against whom he sought wasted costs orders.  He alleged that the solicitors “withheld documents and information” from the court “which would have allowed the court and the defendant to determine or not the accuracy of the Plaintiff’s claim”.  He accused the solicitors of refusing to provide proof or documents about any aspect of the plaintiff’s claim and thereby increasing the legal costs, turning a “simple case with claimed costs of $27,500 into a $500,000 bounty for the partner’s law firm and a windfall of over $700,000 interest to their client”.  He claimed he only obtained evidence and knowledge about such matters when he received the bills of costs in May 2017.  He contended that if the solicitors had “proven the accuracy of each element of the plaintiff’s claim before Master Leong, as they were legally required to do”, none of the costs incurred in the two bills of costs would have arisen.

14.  Allegations that the plaintiff had failed to provide sufficient information to prove the accuracy of the amounts claimed are not new.  They had been raised before the deputy judge and before this court at the hearing of the appeal and rejected in both judgments.  Nor do we accept the defendant had no knowledge of the matters he complained of until he received the bills of costs.  Save as to the amount of costs claimed and the time spent, he was fully aware of the evidence adduced by the plaintiff as it was his persistent complaint that the plaintiff had failed to provide sufficient documents in support of the amounts claimed.  The summonses are just an attempt to re-open matters that had been litigated and determined against the defendant.

15.  The awards of costs made by this court in our judgments of 23 June 2016 and 27 July 2016 are final, subject only to taxation of the amounts claimed on an indemnity basis.  The defendant has exhausted all avenues of appeal.  To entertain the summonses would violate the principle of functus officio.

16.  There is no question of this court re‑visiting the awards of costs and making a new order denying the plaintiff the costs awarded, or making wasted costs orders against the solicitors based on allegations which had been raised substantially before the deputy judge and before this court at the hearing of the appeal and were rejected.  To allow the defendant to seek wasted costs orders on the allegations he makes would be a collateral attack on the judgments of the deputy judge and of this court and is an abuse of process of the court.

17.  We dismiss the three summonses and make an order nisi that the defendant should pay the plaintiff’s costs of each summons.

18.  We are minded to assess the costs of these summonses summarily, as they are discrete applications.  We direct the plaintiff’s solicitors to submit a statement of costs for summary assessment within seven days of the handing down of this judgment and give leave to the defendant to respond to that statement within seven days thereafter.