YEUNG YEUK CHUEN, THE EXECUTOR OF THE WILL OF CHAN YUET SEE, DECEASED v. VINCENT T K CHEUNG, YAP & CO (A FIRM) AND OTHERS

HCMP 823/2016

[2018] HKCFI 1808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 823 OF 2016

____________

____________

__________________________

D E C I S I O N   O N   C O S T S

__________________________

1.  The background of this case has been set out in my Decision on Costs handed down on 3 July 2018 (“the Earlier Decision”) in a related action, HCA 680/2015 (“the Relation Action”), and I do not want to repeat the same here.

2.  For the purpose of the present decision, I would adopt the same abbreviations that I used in the Earlier Decision.

3.  The present case is the rectification action referred to in paragraph 11 of the Earlier Decision, in which the Plaintiff joins the solicitors’ firm who prepared the DMC as the 1^st Defendant and the other owners of Pak Cheung House as the other Defendants.  As alternative to the claim for rectification of the DMC, the Plaintiff asks the 1^st Defendant to execute a statutory declaration acknowledging the inadvertent error in the colouring of the West Yard in the DMC.

4.  The present action first came before me for directions on 24 May 2016.  In that hearing, the 1^st to 4^th Defendants were legally represented.  There was no acknowledgement of service filed by the 5^th, 6^th or 8^th Defendants.  As the 7^th and 9^th Defendants were by then no longer the owners, the Plaintiff discontinued the proceedings against them.  I adjourned the case for substantive argument before me on 30 May 2016.

5.  In the hearing on 30 May 2016, the 1^st to 4^th Defendants were represented by the same legal representatives, whilst the 5^th, 6^th and 8^th Defendants were absent.

6.  The 1^st Defendant adopted a neutral stance on the rectification issue but opposed the alternative claim for the execution of the statutory declaration.  For the 2^nd to 4^th Defendants, they accepted that the colouring of the West Yard in the DMC was wrong.  However, the wrong colouring did not matter because the West Yard was still the common parts of Pak Cheung House.  As the West Yard was not for the exclusive use or occupation by the owner of the Property, it would not reduce the value of the Property for the purpose of the Compulsory Sales Application.  I therefore adjourned the rectification action sine die pending the determination of such issue in the Compulsory Sales Application.

7.  On 17 October 2016, the Lands Tribunal handed down the Judgment in the Compulsory Sales Application.  The Presiding Officer, in paragraphs 76 and 77 of the Judgment, agreed that the wrong colouring of the West Yard in the DMC was not material to the valuation of the Property for the purpose of the Compulsory Sales Application.

8.  On 3 January 2017, a consent order was made whereby leave was granted to the Plaintiff to withdraw the present proceedings against the 1^st Defendant with the issue of the costs of the action be dealt with on papers.

9.  On 8 February 2017, another consent order was made for the dismissal of the action against the 2^nd to 4^th Defendants with no order as to costs.

10.  This is the decision on the costs of the action vis-à-vis the Plaintiff and the 1^st Defendant.

11.  In general, a party seeking to withdraw a claim would have to bear the costs of the counterparty.  However, the Plaintiff argues that he should not bear the costs of the 1^st Defendant because it was the 1^st Defendant who caused the wrong colouring of the West Yard in the first place.  It would also be reasonable to join the 1^st Defendant in the present rectification proceedings and to obtain a statutory declaration from them confirming the wrong colouring of the West Yard.  Hence, the 1^st Defendant should not be allowed to obtain its costs.

12.  Despite these submissions, it is clear that the Plaintiff brought the rectification proceedings against the Defendants for the purpose of the valuation of the Property in the Compulsory Sales Application. The Lands Tribunal made it clear in the Judgment that the wrong colouring of the West Yard in the DMC did not affect the valuation of the Property in the Compulsory Sales Application.  In such case, it was not necessary for the Plaintiff to bring the rectification proceedings against the 1^st Defendant or indeed any parties.

13.  The Plaintiff also relies on a draft statutory declaration previously prepared by the 1^st Defendant acknowledging the wrong colouring of the West Yard in the DMC.  But up to now, I cannot understand how such a statutory declaration can assist the Plaintiff’s case in the Compulsory Sales Application.  So long as the Lands Tribunal found that the West Yard was the common parts of Pak Cheung House, the rectification of the DMC served no particular purpose at all.

14.  For the above reasons, costs should follow the event and I order the Plaintiff to pay for the costs of the 1^st Defendant.