SCHINDLER LIFTS (HONG KONG) LTD v. NIKKO SERVICES LTD

DCCJ 2263/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2263 OF 2013

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REASONS FOR DECISION

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1. By an order dated 10 October 2014, this court dismissed the defendant’s application for leave to appeal to the Court of Appeal against a previous decision dated 18 June 2014 granting leave for the plaintiff to file a fresh statement of claim annexed to its summons filed on 23 May 2014 (“the fresh SOC”). I also made an order nisi that costs of the defendant’s failed application for leave to appeal be to the plaintiff to be taxed if not agreed.

2. This is the defendant’s application for variation of the costs order nisi.

3. I have heard the submissions of the defendant in court by its director Mr Lau and have considered the grounds set out in its letter dated 21 October 2014 and its skeleton arguments (in Chinese) submitted on 14 and 15 November 2014.

4. In gist, the defendant’s complaints are that the court did not have a full picture of the events of this and other related actions in making the decision granting leave for the plaintiff to file the fresh SOC.  The court had not properly or adequately taken into account the alleged misconduct and default on the part of the plaintiff and the alleged unfairness with which the defendant was treated in the course of the many litigations.

5. It further argues that leave to appeal should not be required in accordance with Order 59 rule 21(2)(g) of the Rules of the High Court.  

6. Apart from being wholly misconceived, this is not an issue before the court in this application to vary the costs order nisi.

7. These arguments are either challenges to my previous decisions dated 18 June 2014 (granting leave to file the fresh SOC) and 10 October 2014 (refusing leave to appeal), or are irrelevant to the issue before the court at this hearing.  They go to merits of the defendant’s appeal but are not reasons why costs of its failed application seeking leave to appeal should not follow the event.

8. The defendant seems to be suggesting that I had in making the costs order nisi wrongly taken into account the fact that it was 3 days out of time in issuing the application for leave to appeal.  This is not the case; as stated clearly in paragraph 3 of my decision dated 10 October 2014 I was minded to grant leave for the defendant to proceed out of time.  The application for leave to appeal was dismissed on merits.

9. The defendant in its written arguments submitted on 15 November 2014 raises another question that the costs of two other related actions, namely HCCW 251/2010 and HCCW 41/2014, should be dealt with together with the costs of this application.  This is wholly inappropriate.  The question of costs of these other actions is irrelevant and not an issue before the court at this hearing.

10. There is no reason why costs should not follow the event.  The defendant has not shown any circumstances that would justify the making of some other order.  The defendant’s application to vary the costs order nisi is dismissed.

11. I further order that the costs of this application be to the plaintiff, summarily assessed at $3,000 to be paid forthwith.