XIE LI XIN v. LAW KA YAN, THOMPSON AND OTHERS

HCA 1476/2017

[2018] HKCFI 1432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1476 OF 2017

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DECISION
(Variation of Costs Order nisi)

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1.  By my judgment of 25 May 2018, I made a costs order nisi for the costs of and incidental to the inter partes hearing (heard on 19 and 23 April 2018) to be paid by D1 to P, to be taxed if not agreed, with a certificate for two counsel.

2.  P seeks a variation of the order nisi so that such costs be summarily assessed and paid forthwith.  D1 opposes such variation.  Submissions have been made in writing.

3.  I have had regard to the principles relevant to the exercise of the Court’s discretion in deciding whether to order the costs of an interlocutory application to be paid forthwith, as set out in China Agri-Products Exchange Ltd v Wang Siu Qun (unreported) HCA 1807/2011, per DHCJ Marlene Ng.

4.  The dispute on P’s application for a Mareva injunction against D1 turned heavily on the facts supporting a fraud claim against D1 to D4.  D1 denied involvement in such fraud. P claims D2 to be the main protagonist. D2 – D4 have not yet been served with the proceedings and there may well be significant factual matters which would be raised by them which were not before the Court at the inter partes hearing.  On the state of the evidence as at the stage of the inter partes Mareva hearing, there appeared to be a good arguable case against D1.  That evidence was contained in approximately 25 bundles of documents which may well be the contents of the trial bundles.  I consider it highly likely that a trial will cover much of the same ground as the inter partes hearing.  Accordingly (subject to new factual evidence), the work involved in preparing the presentation of P and D1’s respective cases at trial may well have been already done for the inter partes hearing.  I do notconsider that the inter partes Mareva hearing is severable and self-contained from the rest of the action for costs purposes.

5.  Nor do I consider that justice requires P’s costs to be paid forthwith rather than after the trial.  It is not at all clear to me following the inter partes hearing that P has been proceeding diligently with preparing fortrial where proceedings were started in June 2017 but D2 to D4 have not yet even been served.

6.  I dismiss P’s application for variation of the costs order nisi, which order becomes final.  The costs of and incidental to this application in writing are to be paid by P to D1, to be taxed if not agreed at the same time as the taxation of the costs of the inter partes hearing.

7.  I wish to record my view that the state of the bundles was unhelpful and should be significantly improved before the trial (or any other substantive hearing).  In particular, documents should be in chronological order without duplication; there is no need for several bundles of title or security documents where there is no relevant dispute—the parties’ solicitors should sensibly agree to have sample documents in the bundles.  Further, chronologies should be prepared on the basis that they contain entries for the most important documents; in this case, that is the contemporary WhatsApp messages between the parties.