LAI YUEN WAH v. HOI KWONG PRINTING CO. LTD. AND OTHERS

HCA 2179/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2179 OF 2001

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JUDGMENT

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1. I delivered judgement in this matter on 17 January 2003. Subsequently I have been reminded by the solicitors for the Defendants that, in addition to the appeal from the decision of the Master there was before me two further summonses for decision. They are summonses to discharge Charging Orders Absolute against property of the 2nd, 3rd, and 4th Defendants.

2. The charging orders were issued based upon the summary judgement. It follows that, that judgement having been set aside and unconditional leave to defend given, there is no basis for the charging orders. The solicitors for the Plaintiff have indicated their consent to the discharge of the charging orders. There will accordingly be orders in terms of paragraphs 1, 2, and 3 of the two summonses dated 15 October 2002.

3. Paragraph 4 of each summons deals with costs. For the reasons that follow the question of costs on each summons is reserved.

4. In the judgement of 17 January 2003 I reserved costs. The solicitors for the Defendants, by letter, have referred me to paragraphs 14/7/13 and 14/7/18 of the Hong Kong Civil Procedure 2002 (Vol. 1) and asserted that cost should follow the event. I have considered the Plaintiff's solicitors reply to that letter and a response form the Defendant's solicitors.

5. While it is right that costs usually follow the event there is no unyielding rule that a successful party can always expect to recover costs from someone. It is always open to the court to make no order as to costs. Often orders as to costs can only be properly determined when the merits of litigation have been determined. This is such a case.

6. In any event, I would have thought that it would have been plain the Defendant's solicitors that it is my clear view that this family dispute ought to be resolved. It is now over 8 years since the death of the deceased and it is long past time that the estate should have been wound up. There should be a sensible agreement between the family members in which a deed of family arrangement is made to effect a distribution of this substantial estate between those entitled to the deceased's bounty in terms of the intestacy provisions. That is a distribution that should be made in terms of current values and with an emphasis on allocating to those beneficiaries the properties they were using or occupying at the date of the death of the deceased.

7. I do not know whether this is a case where the parties are resisting sensible advice or whether they have not yet received that advice. In either situation the reservation of costs at this stage gives the parties the time and opportunity to consider what I have said in relation to the resolution of this dispute.

8. There is an obligation on the solicitors on both sides to properly explore a settlement and to encourage and enable their clients to reduce the legal costs involved. An insistence on costs at this stage demonstrates either an inability to understand what the Court has said or an unwillingness to reach a proper settlement. If at the end of the day it is shown that one side or the other has unreasonably resisted reasonable settlement proposals, which may be made on a Calderbank basis, then that unwillingness will be a major factor in the final decision of the court as to where, in justice, the incidence of costs ought to lie. A slavish insistence on the pursuit of cost at this interim stage does no credit to either the defendants or their advisors.

9. For these reasons there will be an order absolute that all questions of costs on the matters before me are reserved.