THE JOINT AND SEVERAL TRUSTEES OF THE PROPERTY OF SO CHING WAN v. ASSEN LTD (In Liquidation) AND OTHERS

CACV 306/2019

[2021] HKCA 666

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 306 OF 2019

(ON APPEAL FROM HCB NO. 4475 OF 2002)

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DECISION ON COSTS

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Hon Cheung JA (giving the decision of the Court on costs):

1.1   This is the applicant’s application to vary our costs order nisi of 29 December 2020. He asked for the costs to be taxed on party and party basis instead of indemnity basis with one certificate for junior counsel for the 2^nd to 4^th respondents. He also asked that he may be allowed to recoup any and all such costs from the estate of the Bankrupt instead of being personally liable for the costs.

1.2     The applicant said he had since obtained the retrospective approval from the Creditor’s Committee to bring these proceedings on 5 January 2021.  Our judgment was handed down on 29 December 2020 before the approval was obtained.  There is no indication that the applicant had informed the Creditor’s Committee the result of the appeal after he sought retrospective approval from it on 22 December 2020 and before the approval was given.  We are not prepared to consider the post judgment documents adduced by the applicant.

1.3     In any event our costs order nisi requiring the applicant to bear the costs personally and on an indemnity basis was based on the unmeritorious nature of the appeal. There is no inflexible rule that a trustee in bankruptcy should not be ordered to meet such costs orders.  Accordingly the application to vary is dismissed and the costs of and occasioned by this application be to the respondents to be taxed together with the costs of the appeal if not agreed.