HO WAI KWONG (何偉光), executor of the estate of YU KING (余琼), deceased v. HO KAM CHUI

CACV 301/2023, [2025] HKCA 389

On Appeal From [2023] HKCFI 2218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 301 OF 2023

(ON APPEAL FROM HCA NO 1224 OF 2016)

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DECISION ON COSTS

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Hon G Lam JA (giving the Decision on Costs of the Court):

1.  In our judgment in the defendant’s appeal handed down on 20 February 2025,[1] we made an order nisi at §86 that (1) left intact the costs order below, i.e. that the defendant do pay the plaintiff the costs of the action (including the claim and counterclaim), with a certificate for two counsel, to be taxed if not agreed; and (2) the defendant do pay 80% of the plaintiff’s costs of the appeal, to be taxed if not agreed.

2.  The defendant has applied by summons to vary the order nisi, seeking to replace it with the following orders (in each case with a certificate for two counsel and taxation if the costs are not agreed):

(1)  As to the costs below:

(a)  that either

(i)   the defendant shall pay the plaintiff the costs of the action from the issuance of proceedings to the close of pleadings, and the plaintiff shall pay the defendant the costs of the action from the close of pleadings onwards (including all costs reserved); or

(ii)  the defendant shall pay 25% of the plaintiff’s costs of the action; and

(b)  that the defendant shall pay the plaintiff the costs of the counterclaim.

(2)  As to the costs of the appeal:

(a)  that the plaintiff do pay 50% of the defendant’s costs; or

(b)  that there be no order as to costs.

3.  The justifications put forward for the variation regarding the costs below may very broadly be stated as follows.  Ms Lin and Mr Yu submit on behalf of the defendant that the plaintiff’s submissions to the judge below, leading to the judge giving a declaration of beneficial ownership of the property in question (i.e. the half share of Shop B, Ground Floor, Kam Fook Mention, 148-156 Jaffe Road, Hong Kong) in favour of the plaintiff, were found by this court to be erroneous. Notwithstanding that the defendant had pleaded that the only remedy of the plaintiff was to ask for payment of the consideration for the sale and purchase, the plaintiff had unreasonably pursued a claim for recovery of the property itself.  After the close of pleadings, the plaintiff should have realised his claim for the property was doomed to fail.  This had led to much costs being wasted.  The court can reflect its disapproval of the plaintiff’s conduct of the litigation by depriving him of costs.

4.  We do not accept the defendant’s submissions. The defendant took the position that the transfer of the shop to her in 2013 was a gift and counterclaimed for the whole or half of the ownership of the shop on that basis.  Her claim for the entirety of the shop was only abandoned at trial, whilst she maintained the claim that the Mother gifted half of the shop to her.  It was only as a fall-back position that she contended that if the transfer was a sale, whilst the Mother could have rescinded it due to non-payment of price, she had not done so but had instead affirmed the sale and purchase in various ways. 

5.  As far as we can see, the trial was therefore concerned primarily if not exclusively with the factual questions of whether the transfer was a gift or a sale and, if it was a sale, whether the Mother could in fact still have rescinded it or had already affirmed it.  On these questions the defendant had wholly failed before the judge and this is not altered in the light of this court’s judgment.  The question of law as to the proper remedy hardly took up any time below.

6.  The plaintiff has in the event obtained judgment against the defendant for $8 million with interest from July 2014.  He had to go to trial to obtain this outcome because the defendant’s primary case, maintained to the very end, was that the transaction was a gift and that the plaintiff’s action should altogether be dismissed.

7.  It is true that on appeal this court held that the judge erred in relying on the plaintiff’s submissions at trial to decide the question of beneficial ownership of the half share in the shop in the plaintiff’s favour.  But there was apparently no real argument on the law at trial, and the error found by this court was not in any way pointed out by the defendant at trial.  As we observed in our judgment, the defendant’s submissions on the Pan Ocean point were confusing and no doubt contributed to the error in the decision below.

8.  For these reasons we reject the application to vary the order nisi relating to the costs below.

9.  As for the proposed varied order for costs of the appeal, Ms Lin and Mr Yu submit that the defendant was the successful party in the appeal given that the judge’s declaration of beneficial ownership was set aside, which was the main dispute. Alternatively, they submit that since this court in allowing the appeal in part took an approach distinct from the parties’ and the judge’s, a fair order would be no order as to costs.

10.  We do not think that the defendant can fairly be described as the successful party in her appeal.  The main plank in her appeal was a re-run of her factual case that the transaction was a gift, not a sale. This court rejected her arguments in that respect as “utterly hopeless” and criticised one of the arguments as an “abuse of process”.[2]  The second aspect of her appeal was to attack the judge’s factual findings that the Mother had not affirmed the sale and purchase and had instead accepted the defendant’s repudiation thereby terminating the transaction.  This court found that question to be inconsequential and was in any event inclined to agree with the plaintiff’s submission that the points the defendant had sought to raise on appeal in that regard were new and unpleaded arguments not open to her.[3]  On the above two main points, therefore, the plaintiff prevailed on appeal. 

11.  On the question of remedy, what was submitted on behalf of the defendant to this court was that there should at most be an order for personal restitution as opposed to a declaration of beneficial ownership.[4]  This submission missed the point which was that restitution did not come into play at all.  It is true that the point was raised by this court and led to the appeal being allowed in part with the declaration of beneficial ownership being substituted by a monetary judgment in favour of the plaintiff, but this does not detract from the fact that the plaintiff had prevailed against the defendant’s primary contentions in the appeal.

12.  In our view, ordering the defendant to pay 80% of the plaintiff’s costs of the appeal is a just order and sufficiently reflected the plaintiff’s failure to uphold the declaration of ownership.

13.  For these reasons, the defendant’s summons dated 6 March 2025 is dismissed with costs to the plaintiff to be taxed if not agreed.