THE INCORPORATED OWNERS OF KINDGOM POWER COMMERCIAL BUILDING v. SHEEN WEALTH INDUSTRIAL LTD AND ANOTHER

DCCJ 4890/2018

[2022] HKDC 283

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4890 OF 2018

------------------------------------

------------------------------------

---------------------------

DECISION

---------------------------

A. INTRODUCTION

1.  On 16 November 2021, I handed down Judgment of the trial of this Action (“the Judgment”). In paragraph 88 of the Judgment, I made a costs order nisi that the 1^st and the 2^nd defendants do pay 70% of the costs of the Action to the plaintiff, to be taxed if not agreed with Certificate for Counsel (“the Costs Order Nisi”). Unless otherwise stated, I adopt the abbreviations used in the Judgment in this decision.

2.  By a Summons dated 29 November 2021 (“the Summons”), the 1^st and the 2^nd defendants (“the defendants”) seek to vary the Costs Order Nisi such that:-

(1)  Relating to matters of the Fire-fighting System on the Roof, the plaintiff shall only have its costs up to 21 May 2019, ie 28 days after the sanctioned offer of 23 April 2019 (“the Sanctioned Offer”), and shall thereafter bear the costs incurred by the 1^st and 2^nd defendants relating thereto on an indemnity basis;

(2)  Relating to the matters of the Plumbing System at the Yard, there be no order as to costs.

3.  The Summons is supported by the Affirmation of Wong Wai Lok dated 29 November 2021, in which the defendants drew my attention to the Sanctioned Offer and various without prejudice save as to costs correspondence between the parties.

4.  Upon my directions that the Summons be dealt with on paper, the parties have filed their respective submissions and I will set out my decision below.

B. DISCUSSION

B1. Costs relating to the Fire-fighting System issues

5.  My decisions regarding the Fire-fighting System issues were set out in Sections J to M of my Judgment.

6.  I do not consider the defendants to have done better in the Judgment than what they have offered in the Sanctioned Offer:-

(1)  Significantly, in the Sanctioned Offer, the defendants offered to give a written undertaking “to allow the [p]laintiff to continue using and enjoying the part of the Roof where the 2^nd [d]efendant has exclusive right to use…to accommodate the Fire Fighting System which had already been installed…on a free of charge basis” (Emphasis added). As I have found in Sections J2 and K of the Judgment, the 1^st defendant (and now the 2^nd defendant) does not have any exclusive right to enjoy the area occupied by the Fire-fighting System, as they have acquired the Property subject to the plaintiff’s proprietary right to install and maintain the Fire-fighting System in the 2^nd Area;

(2)  Further, as stated in the defendants’ letter dated 6 June 2019 clarifying the Sanctioned Offer, the defendants maintained their non-admission that the 2^nd Licence Agreement was void. As I have found in Section L of my Judgment, the 2^nd Licence Agreement was in fact void ab initio for total failure of consideration. Hence, the defendants have no right to collect any licence fees from the plaintiff.

7.  Further, I do not agree that “the occupation of the [Fire-fighting System] has not been strenuously challenged either in the Amended Defence and Counterclaim of the Defendants or in the trial”, as contended by the defendants in their written submissions dated 26 November 2021. As could be seen from the Judgment, the defendants’ right to exclusive enjoyment of the Roof in the 2^nd Area was contested by the parties and eventually resolved by the court. As the defendants accepted in paragraph 9 of its further written submissions dated 10 January 2022, in the trial, the parties “roughly spent equal times in issues relating to the [R]oof and relating to the [Y]ard”.

8.  For the above reasons, I decline to vary the costs order in relation to the Fire-fighting System issues.

B2. Costs relating to the Plumbing System issues

9.  My decisions regarding the Plumbing System issues were set out in Sections E to I of my Judgment.

10.  The defendants are not relying on any sanctioned offer in support of their submissions to vary the Costs Order Nisi concerning the Plumbing System.

11.  Having considered the submissions made by the defendants and the plaintiff on the costs arising from the Plumbing System issues, I do not consider there to be sufficient reasons for me vary the Costs Order Nisi, which has taken into account the parties’ overall positions, including their positions with respect to the Plumbing System issues, after the trial.

C. DISPOSITION

12.  I decline the defendants’ Summons to vary the Costs Order Nisi. I order that the Costs Order Nisi be made absolute.

13.  I order the defendants to pay the costs of and occasioned by the Summons to the plaintiff with certificate for counsel.