KASEM NARONGDEJ v. GOLDEN MUSIC LTD AND OTHERS

HCA 1525/2018

[2019] HKCFI 2105

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1525 OF 2018

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DECISION ON COSTS

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1.  This is the 2^nd defendant’s (“Nop”) application seeking the costs order dated 26 July 2019 to also certify the suitability for two counsel to attend the hearings on:

(a)     Friday 6 July 2018 (“return day” hearing, where directions for the continuation of the injunction order were given);

(b)     Friday 20 July 2018 (“summons day” hearing, where, similarly, directions were given).

(collectively “the direction hearings”)

2.  This application arose out of the decision handed down on 26 July 2019 (“the discontinuance decision”) whereby the defence (including Nop) was substantially the successful party.  In gist, by the discontinuance decision, this action (commenced by Kasem) was discontinued.  The related costs were in essence awarded to the defence (including Nop). 

3.  The relevant background facts have been summarized in the discontinuance decision and will not be repeated here.  The same abbreviations in the discontinuance decision will be used below.

4.  Kasem’s main argument in opposition to this application is that it was unreasonable for Nop to instruct two counsel to attend the direction hearings:

(a)     the direction hearings did not involve voluminous documentation;

(b)     neither GML nor KKB appeared by two counsel;

(c)     senior counsel for Nop was also involved in a related legal action and should already be familiar with the facts relevant to the direction hearings;

(d)     the legal issues involved only settled law.

5.  There does not seem to be any dispute the test applicable to this application is ultimately whether it was reasonable for Nop to appear by two counsel.

6.  My first observation is that Kasem was himself represented by two counsel at the direction hearings.  Further, relative to Kasem, Nop would have much less time to prepare for the direction hearings (the relevant court documents were served on Nop after 29 June 2018, about a week or so before 6 July 2018).

7.  In relation to para 4(a) above, the direction hearings have an element of urgency (see para 6 above).  The assets concerned were substantial in value, and the background and documentation would require detailed examination and analysis.  Kasem’s own level of legal representation may well also reflect such concerns.

8.  In relation to para 4(b) above, because Kasem is not contending it would be unreasonable for any of the parties (including himself) to appear by two counsel, the legal representation of GML and KKB is not relevant.

9.  In relation to para 4(c) above, although there were overlaps in the persons and transactions involved in the two legal actions, the dispute involved was very different (for example, the ownership of the GML shares was not an issue in the other legal action).

10.  In relation to para 4(d) above, as is usually the case, it was rather the complexity in the application of settled legal principles to the facts concerned (than the settled legal principles themselves) which would require substantial input from the legal representatives.  That exercise can in no way be described as simple or straight forward in the context of this action.

11.  For the above reasons, I find it appropriate to certify that it was suitable for two counsel to attend the direction hearings for Nop.

12.  I also agree with Nop that Kasem’s opposition to this application is unreasonable; hence, taxation of the related costs on an indemnity basis is justified (and so ordered).