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HCMP 1941/2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 1941 OF 2011
(ON AN INTENDED APPEAL FROM HCCW NO 463 OF 2010)
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IN THE MATTER OF Decade Technology Limited
（德凱技術有限公司）
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and
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IN THE MATTER OF section 327(3)(c) of the Companies Ordinance, Chapter 32 of the Laws of Hong Kong
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BETWEEN
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LIU LIGUANG（劉立光） |
Petitioner |
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and
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DECADE TECHNOLOGY LIMITED |
1st Respondent |
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GREAT MASTER TECHNOLOGY LIMITED |
2nd Respondent |
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Before: Hon Kwan JA in Chambers
Date of Decision on Costs: 22 February 2012
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DECISION ON COSTS
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1. On 31 January 2012, I handed down my decision dismissing the petitioner’s application for leave to appeal to the Court of Appeal against the refusal of Reyes J to grant interim injunctions. I awarded costs to the 2nd respondent to be assessed on a gross sum basis and gave directions to the parties to lodge a skeleton bill and response.
2. The 2nd respondent now seeks costs on an indemnity basis in a written submission. The petitioner chose not to make a substantive response, taking the view that since the 2nd respondent did not make submissions to that end at the oral hearing on 13 January 2012, it should not be permitted to do so subsequently. I am not minded to take such a strict view. Even though both parties had informed the court at the hearing they were content for costs to follow the event with no indication that any other basis of taxation should apply, I am inclined to think that a party should not be shut out from seeking costs on a higher basis after he has had the benefit of reading the reasoned decision of the court.
3. I refused leave to appeal as I was not persuaded that the threshold requirement for granting leave has been satisfied. But that does not mean indemnity costs should be awarded in every case where the threshold requirement is not met. Unmeritorious applications may differ in degree. In particular, I bear in mind that the 2nd respondent did not raise any defence to the alleged unauthorised loan in the evidence it filed, and it was only in the hearing before Reyes J that it was ascertained from the 2nd respondent’s counsel the defence relied on to answer this complaint would be on the same lines as pleaded in the Points of Defence.
4. I do not consider the present application is of such a kind that calls for costs on the indemnity basis. I decline to exercise my discretion to award indemnity costs.
5. There is no dispute as to the costs claimed in Sections B, E and F of the 2nd respondent’s statement of costs for summary assessment. The total amount for these sections is $129,837. I use an hourly rate of $3,500 and $2,800 for the first two fee earners and make no adjustment to the hourly rate of the third at $2,250. I allow $30,000 for Section C, and $52,400 for Section D. The total amount of costs awarded to the 2nd respondent on the standard basis in this summary assessment is $212,237.
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(Susan Kwan)
Justice of Appeal |
Messrs Peter K S Chan & Co, for the petitioner (applicant)
Clifford Chance, for the 2nd respondent (respondent)
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