MAXDO PROJECT MANAGEMENT CO LTD v. MARQUIS THOMAS FRANCIS

DCCJ 1004/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1004 OF 2010

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BETWEEN

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R U L I N G

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1.  This is an application by the Plaintiff asking me to vary my costs order.

2.  I believe we have no disagreement with the general principle as set out in the White Book and has been summarised by Mr Justice Ma, as he then was, in his judgment given in Schindler Lifts (Hong Kong) Ltd v. Ocean Joy Investment Ltd.

3.  When the court grants unconditional leave to the Defendant to defend, the usual costs order is costs in the cause unless there are special circumstances. 

4.  Mr Wong also referred me to the closing submission by the counsel for the Defendant where he also suggests if I were to give unconditional leave to defend, then a costs order should be costs in the cause, and I believe he was having in mind the same passage in the White Book.  This morning, the Defendant’s solicitor objected to vary my cost order nisi.

5.  In this Order 14 application, the defence has been filed in May before the Order 14 summons has been taken out. 

6.  While Mr Wong tried to persuade me that the defence is just a bare denial, I cannot agree.  In fact, the defence do set out in some details as to why they said there is no agency agreement and why they need not indemnify the Plaintiff.

7.  To a certain extent, they cannot go into all the details, because as I also mention in my judgment, which I discussed with the Plaintiff’s counsel at the Order 14 hearing, this statement of claim is lacking in particular.  I have indicated to him that he might need to amend it in order for him to proceed with the statement of claim.  And if I remember correctly, he did agree with me that is the position. 

8.  So, when I am hearing this argument, in fact, I am hearing more than this statement of claim, but also hearing what is said in the affidavit of the Plaintiff. 

9.  So, in that aspect, I consider this is a special circumstance which I did not dismiss the Order 14 summons I do consider it is fair in the circumstances to award costs to the Defendant, and that is the reason why I refuse to vary the costs order.

(Discussion re costs)

10.  Costs of today be to the Defendant.