CHAN WING TONG v. THE INCORPORATED OWNERS OF KAM CHUNG BUILDING (JAFFE ROAD) AND OTHERS

HCA 1581/2017

[2024] HKCFI 2213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1581 OF 2017

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D E C I S I O N
( On Variation of Costs Order Nisi )

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Introduction

1.  The 7 day trial in this action took place in July 2023, and this Court handed down the judgment essentially in favour of the plaintiff on 15 February 2024 (“Judgment”). I shall continue to adopt the abbreviations therein, unless otherwise indicated in this decision.

2.  The defendants have lodged an appeal against the Judgment.

3.  In the Judgment, this Court made the following costs order nisi (“Order Nisi”):

(1)  P’s costs of his claim against the IO and the IO’s counterclaim against P are to be paid by IO, to be taxed on party and party basis if not agreed.

(2)  P’s costs of his claim against the MOs and MOs’ counterclaim against P are to be paid by the MOs jointly and/or severally, to be taxed on party and party basis, if not agreed.

4.  On 29 February 2024, P issued a summons for variation of the Order Nisi (“Variation Summons”), as follows:

(1)  P’s costs of his claim against the IO and IO’s counterclaim against P are to be paid by IO, to be taxed on party and party basis, with certificate for 2 counsel for the trial, if not agreed;

(2)  P’s costs of his claim against the MOs and the MOs’ counterclaim against P are to be paid by MOs jointly and/or severally, to be taxed on party and party basis, with certificate for 2 counsel for both the trial and the hearings on 20 April 2023 and 23 May 2023, if not agreed.

5.  The IO (ie D1) indicated through their solicitors’ letter of 6 March 2024 that they would not ask for or participate in the Variation Summons without prejudice to their right to appeal against the Judgment. In short, IO had not lodged any written submissions in relation to the Variation Summons.

P’s Grounds for the variation

6.  P referred this Court to those 9 relevant factors in deciding whether 2 counsel should be instructed as set out by Master Poon, as he then was, in Xinyuan Trading Co Ltd v NPH Petrochemical Ltd (HCA 18159/1998 and CACV 276/1998 review of taxation, 25/09/2000). In particular, one of the factors is whether the other side has instructed a leader: see British Metal Corporation Ltd v Ludlow Brothers (1913) Ltd [1938] CH 787.

7.  It is submitted by P that taking all the above factors especially the fact that all parties were represented by 2 counsel at trial into account, this is a case which warrants a certificate for 2 counsel. P submits that the PTR hearing on 20 April 2023 is part of the trial, and P further seeks a certificate for 2 counsel for the hearing on 23 May 2023.

Discussion and Conclusion

8.  As pointed on behalf of the MOs, the Joinder Summons to join the MOs was taken out by P only on 16 February 2023 and initially the Joinder Summons was fixed for hearing on 20 April 2023 at the time of the PTR. In light of there only being 30 minutes fixed for the hearing on 20 April 2023, there was clearly not sufficient time, and on 19 April 2023, this Court directed that the parties to refix a  hearing for the Joinder Summons for proper argument.

9.  The PTR as between P and IO took place on 20 April 2023 and lasted 14 minutes.

10.  The substantive hearing of the Joinder Summons took place on 23 May 2023 and by the decision on 29 May 2023, the MOs were joined (“Joinder Decision”). The order nisi in the Joinder Decision that P was to pay both IO’s and MOs’ costs of and occasioned by the Joinder Summons was later varied on 19 December 2023 by this Court and the MOs’ costs were ordered to be costs in the cause of P’s claim against them.

11.  Insofar as the costs of the PTR are concerned, as the MOs were not yet joined, even though they lodged written submissions in opposition prior to the PTR, the Joinder Summons was refixed to  the substantive hearing on 23 May 2023. No one from the MOs had attended the hearing on 20 April 2023. I therefore accept the MOs’ submissions that they should not be responsible for P’s costs of the PTR, which only concerned P and the IO. According to the court record, the PTR hearing lasted only 14 minutes. Even though 2 counsel were instructed to attend the PTR for the IO, the proposed directions sought by IO were largely agreed, and I granted an order in terms of the draft submitted by the IO subject to some minor amendments. I do not think it is necessary for P to instruct 2 counsel and I am not prepared to grant a certificate for 2 counsel for P for the PTR on 20 April 2023.

12.  Insofar as the substantive hearing of the Joinder Summons on 23 May 2023 is concerned, IO instructed counsel Ms Wu, and MOs instructed 2 counsel. P instructed 2 counsel for that hearing. In effect, there were 3 counsel on the opposite side. In my view, P was justified in instructing 2 counsel for the hearing on 23 May 2023.  

13.  As for the trial, even though each case depends on its own facts, having considered that there were 2 counsel instructed on behalf of the IO, and another 2 counsel including a leading counsel instructed on behalf of the MOs, I am of the view that P is justified in instructing 2 counsel for the trial.

14.  The Order Nisi is thus varied to reflect the above said.

15.  As P has not been entirely successful, nor have the MOs, I make no order as to costs of the Variation Summons.