RALOTTE INVESTMENTS LTD v. THE BAUHINIA LTD AND OTHERS

HCMP 3388/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO3388 OF 2013

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D E C I S I O N

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1.  The applicant seeks to vary the costs order nisi I made in my decision on costs dated 2 September 2014.

2.  The need to decide on costs came about when the parties came to a settlement and costs were adjourned for determination on the papers without an oral hearing.

3.  The parties have had the opportunity of making written submissions on costs and, in particular, the applicant has been given the opportunity to file two rounds of submission.

4.  I have also given full reasons for my decision on costs.

5.  Reading the skeleton submission of the applicant today, it is effectively an attack on the views I have taken on the substantive issues, which Mr McLeish now puts under his skeleton submissions as “Reason 1: Failure to convene an EGM for the purpose of voting on whether or not the company should bring the intended action itself” and “Reason 2:  That, had it done so, the company would have been able to procure a resolution in favour of the company’s doing so”.

6.  I agree with Mr Lo that it was unfortunate for the applicant to treat the decision on costs order nisi as an opportunity for a review of the decision on merits of the decision and to reopen all the arguments.  They should have gone on appeal, if so advised.

7.  Having heard the arguments, I see no difference in substance between the case of Yaacov Ozer v Kwan Siu Man, cited in the Hong Kong Civil Procedures 2015.  What the applicant is seeking to do is to attack the very core of the two issues that formed the bulk of my decision. The grounds that it has now put forward had either been considered or could have been raised in their skeleton submissions before the decision was made.

8.  The submission that the decision on costs was unfair, with respect, could not be the basis for this court reviewing its decision today.  The court does not operate on vague notions of fairness.  As Mr Lo points out, a party who uses the wrong step to take out a meritorious claim may have to be the pay the costs arising upon dismissal of the action.

9.  The fact that the decision on costs was expressed as an order nisi is really just to cater for the fact that, in many situations where there had been no oral hearing, parties may have loose ends to tie up (for example, Calderbank offers or sanctioned offers) before an order is sealed.

10.  I regard myself as having no power to review my own decision along the lines as suggested by Mr McLeish and I decline to do so on the substantive issues.  There is nothing else to persuade me to review my exercise of discretion on costs.

11.  I therefore make the order nisi absolute.

(Submissions re costs)

12.  In the present case, I see no reason for penalising the applicant on indemnity basis, in the face of their wish to have the order varied.

13.  Accordingly, I follow the usual rule of party and party costs.

14.  In relation to the 2^nd and 3^rd respondents, I award costs on party and party basis in the sum of $30,000, and then for the company, $25,000, the position of the company being much simpler than that of the respondents.