MEI KING MACHINERY ENGINEERING v. PRIZEMART LTD

DCCJ 2927/2019

[2022] HKDC 1216

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2927 OF 2019

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DECISION

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THE APPLICATION

1.  On 16 August 2022, I granted an application by the defendant for the transfer of this action to the Court of First Instance pursuant to Order 4, rule 1 of the Rules of the District Court, Cap 336H (“RDC”) and sections 41(3) and 42 of the District Court Ordinance, Cap.336 (“DCO”), on the ground that the defendant’s counterclaim for damages exceeds the jurisdiction of the District Court[1]. I made an order nisi that the costs of the application, including the costs of the further written submissions directed by the court to be filed by the parties at the conclusion of the hearing held on 21 July 2022, be in the cause (“the Costs Order Nisi”).

2.  Under the defendant’s summons dated 23 May 2022 by which the application for the transfer of the case was made, the defendant asked for the costs of the transfer application to be in the cause. The defendant now submits that it was not contemplated that the application would be controversial since this was a matter of jurisdiction. However, the plaintiff opposed the application at the hearing on 2 June 2022 originally fixed to be heard before Master Maurice Lam, who directed the parties to file further affirmation evidence, and that a substantive hearing be fixed for 3 hours to be heard before a judge. It is submitted that as a result, substantial time and costs were incurred by the defendant. The defendant says that the original costs order sought has ceased to be appropriate, and applies by summons dated 30 August 2022 for a variation of the Costs Order Nisi to the effect that the plaintiff shall pay forthwith its costs of the transfer application, including the costs of the further written submissions, to be summarily assessed.

CONSIDERATION OF THE PARTIES’ SUBMISSIONS

3.  The reasons for my decision to transfer the case to the Court of First Instance have been set out in my written Decision dated 16 August 2022. I rejected the grounds of opposition put forward by the plaintiff, including that the defendant has purposely amended its counterclaim and included an unfounded head of claim for the costs of repair or replacement of the production lines supplied by the plaintiff under the alleged contract with a view to putting undue pressure on him, and unfairly applying to transfer this case to the Court of First Instance. I also rejected the ground put forward by the proprietor of the plaintiff, Mr Yip, that he has suffered financial pressure and health problems as a result of this litigation, and that his business partner has passed away during these proceedings.

4.  The plaintiff also raised for the first time during the hearing before me on 21 July 2022 another ground of opposition. He objected to the plaintiff’s expert evidence by challenging his independence. As a result of this new point raised at the hearing, I directed that further written submissions be filed by the parties. This the defendant did. After considering the further submissions, I also rejected the plaintiff’s objection on the ground that the defendant’s expert is not an independent witness. The reasons for my decision in this respect have been set out in paragraphs 11 to 18 of my Decision dated 16 August 2022. The point now raised by the defendant is that the plaintiff initially did not object to the defendant’s application to adduce the report of its expert, although the fact that the expert is employed in the same group of companies as the defendant has already been disclosed to the Master hearing the application at the time. In granting leave to the defendant to adduce the expert report, the Master was already made aware that the expert had signed the requisite declaration and that he understood his duty to the court.

5.  It is therefore submitted by the defendant that the plaintiff has acted unreasonably by raising the above untenable objections.

6.  Whilst I do note that fact that the plaintiff is unrepresented and Mr Yip might have only considered it apt to raise, in particular, the point about the independence of the defendant’s expert witness during the hearing before me, I agree with the defendant that the mere fact the plaintiff is acting in person or is not conversant in legal principles and procedure does not entitle the plaintiff to a more generous or special treatment concerning costs (FWP v CYMA, HCMP 946 of 2005, 18 October 2005 at paragraph 5). To do so would do “reverse prejudice” to the represented opponent (Shum Kin Yee v DBS Bank Hong Kong Ltd, DCCJ 1726 of 2011, 2 September 2013, HH Judge Leung, at paragraph 7; Alice Li Miu Ling v The Equal Opportunities Commission, DCEO 2 of 2005, 27 February 2006, Deputy District Judge KW Wong, at paragraph 24).

7.  It is also submitted by the defendant that although after the Civil Justice Reform, the principle that costs should follow the event save and except in special circumstances is no longer the prescribed usual order for interlocutory proceedings, that principle remains as an option which is often adopted in practice (see Hong Kong Civil Procedure 2022, Vol.1 at paragraph 62/3/3B). In the present situation, I do not see any reason why this principle should not be adopted.

8.  On the other hand, for opposing this application to vary the Costs Order Nisi, the plaintiff only repeated the former grounds relied upon by him in opposition to the transfer application, which grounds not only have I already rejected, but which are also not helpful to the plaintiff in the present consideration on costs.

CONCLUSION

9.  In the circumstances, I agree with the defendant that the Costs Order Nisi should be varied to the effect that the costs of the application by summons dated 23 May 2022 to transfer the proceedings to the Court of First Instance, including the costs of the further written submissions, be paid by the plaintiff forthwith, to be summarily assessed.

10.  I also make an order that the costs of this application to vary the Costs Order Nisi be paid by the plaintiff forthwith, to be summarily assessed.

SUMMARY ASSESSMENT OF COSTS

11.  In respect of the assessment of the costs referred to in paragraph 9 above, I have considered the statement of costs dated 23 September 2022 submitted by the defendant for summary assessment. Upon considering the items listed in the statement of costs, taking a broad-brush approach, I summarily assess such costs to be HK$82,000.

12.  As for the costs of the present application for variation of the Costs Order Nisi referred to in paragraph 10 above, I have considered the statement of costs dated 6 October 2022 submitted by the defendant, and summarily assess the same to be HK$30,000.