FONG E-FONG, CANDY v. SIU KAM TONG AND ANOTHER

HCA 2467/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2467 OF 2016

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D E C I S I O N

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1.  I have before me an application by the plaintiff by summons for leave to appeal against my decision on costs handed down on 18 November 2016 in relation to the plaintiff's application for interlocutory injunction. The defendants did not attend the hearing. The plaintiff said that she had served the summons by ordinary post on the defendants but on being telephoned by my clerk the defendants said that they had not received any summons and were not aware of the hearing. I decided to permit the hearing to proceed in their absence.

2.  The plaintiff submitted that I should have made an order of costs on the basis that costs should follow the event. However, at the hearing on 11 November 2016, the plaintiff did not seek, and I did not grant, any substantive order on her application; nor did the plaintiff ask for any undertaking from the defendants along the lines of the injunction sought or otherwise.  Accordingly, the proper approach to the question of costs is in my view as set out in my Decision. 

3.  As regards the late filing of the defendants' evidence, contrary to the plaintiff's submission, this court did not "rely completely" on the evidence of the defendants.  Nor did the plaintiff ask for an adjournment in order to deal with the defendants' affirmations at the hearing on 11 November 2016.  The plaintiff submitted that since the defendants were late in filing their affirmations, had the matter proceeded she would have been entitled to file an affirmation in reply and to have an order in her favour for costs thrown away.  I do not agree this would necessarily have been the outcome.  There were evidential deficiencies in the plaintiff's own case even leaving aside the defendants' evidence, as pointed out in §§19 and 20 of my Decision.

4.  The plaintiff complained that this court had made an assumption that the defendants had the right to the disputed land.  It should be clear from my Decision that I have done nothing of the kind.  She claimed that contrary to §5 of my Decision, the disputed land was not only accessible through the defendants' gate, and that I should not have simply relied on the defendants' assertion to that effect.  But what she has not disputed is that (as already pointed out in Chung J's decision at §6 based only on the plaintiff's evidence) the disputed land falls on the defendants' side of the partition wall between their houses as built since 1981 and that the DMC confirms each owner has exclusive possession of his or her own property.

5.  The plaintiff also complained that this court had failed to appreciate that the substantive issue of land entitlement could not be fairly decided on the limited evidence available.  But even on an interlocutory injunction, the merits of the plaintiff's cause of action have some significance and have to be examined to the extent appropriate.  Likewise for evidential deficiencies of the parties' respective cases for the purposes of the application for interim injunction.  I recognise entirely that in the circumstances that had happened, I could not, and indeed I did not, enter into any final determination of the substantive rights and obligations between the parties.  But this does not mean that the court could not form a broad view of the merits of the interlocutory application that had given rise to the costs in question. 

6.  The plaintiff submitted she should also have the costs of the hearing before Chung J on 30 September 2016 (which were reserved) because the defendants sought time to file evidence and costs were therefore thrown away.  This was not in the intended grounds of appeal set out in the plaintiff's 5^th affirmation.  In any event, as I read Chung  J's judgment, his Lordship adjourned the hearing because it was then only shortly after the plaintiff had issued her summons and, given the features set out in his decision at §6, the defendants should in his view be given a reasonable opportunity to respond.  I do not accept there are grounds to suggest I was plainly wrong in not making a separate order in the plaintiff's favour for the costs of that hearing.

7.  Finally, I should not leave unanswered the serious allegation the plaintiff made on affirmation that this court had put pressure on her and discriminated against her because she was a barrister. I reject the suggestion that by expressing some provisional views formed upon reading the written materials, this court could be in anyway interpreted as putting pressure on the plaintiff.  Nor did this court discriminate against the plaintiff.  I do however say that I was disappointed that the plaintiff, despite being a barrister and despite she was asking for costs to be awarded to her at her professional charge out rate, had not complied with practice directions requiring the preparation of paginated hearing bundles (and that regrettably applies also to this application for leave to appeal).  That had made this court's preparation for the hearing and references to the evidence during the hearing unnecessarily difficult and time-consuming, though this did not enter into my consideration of the outcome on costs.

8.  As is well established, costs is a matter in the general discretion of the court.  I do not think the plaintiff has begun to show any ground for impugning the exercise of discretion.  I do not consider the proposed appeal to have any prospect of success.  Accordingly, this application for leave to appeal must be dismissed.  No order is made as to the costs of this application since the defendants have said they were not aware of it.