LO KAI SHUI v. HSBC INTERNATIONAL TRUSTEE LTD AND OTHERS

HCA 404/2018

[2022] HKCFI 1508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 404 OF 2018

________________________

________________________

________________________

DECISION ON LEAVE TO APPEAL

________________________

1.  By summons dated 12 January 2022 (the “Leave Summons”), the plaintiff applies for leave to appeal against this court’s decision on costs dated 29 December 2021 (the “Decision”)  in respect of 5 summonses (collectively, the “Summonses”)  as between the plaintiff, the 1^st defendant and the 2^nd defendant.

2.  It is not in dispute that in order to be granted leave, the plaintiff must satisfy the court that he has reasonable prospect of showing on appeal that this court either erred in principle or exercised its discretion in a manner which was plainly wrong.

3.  In my view, the plaintiff has failed to demonstrate that this court has committed any error of principles or is plainly wrong in exercising its discretion.  In short, the plaintiff’s proposed grounds of appeal are no more than a rehash of the rejected arguments, and his application for leave must be dismissed.

4.  As regard the 1^st defendant, the procedural history leading to the resolution of the Summonses has been set out in paragraphs 3 to 22 of the Decision.

5.  From the procedural history, I came to the conclusion that the core dispute between the parties was whether the plaintiff is entitled to exclude the use of the Recording and the Transcript not just for the purposes of the 1^st defendant’s strike-out application, but also at trial and more generally in these proceedings.  This core dispute was ultimately resolved in the 1^st defendant’s favour.  In the circumstances, the plaintiff should pay the 1^st defendant’s costs as (a) the plaintiff was not the “effective winner”, and (b) the plaintiff’s conduct was unreasonable, resulting in substantial wastage of time and costs.

6.  As regard the 2^nd defendant, the relevant background has been set out in paragraphs 24 to 29 of the Decision.

7.  As submitted by the 2^nd defendant, the 2^nd defendant’s initial refusal to provide the Confirmation was reasonable because:

(1)  The plaintiff was not entitled to it.  By the terms of the plaintiff’s request, the 2^nd defendant was required to confirm that he would not seek to adduce (or otherwise rely upon)  the Tabs and the Affidavit “in any other manner” for the purposes of or at the hearing of the 1^st defendant’s and the 2^nd defendant’s strike out applications.

(2)  In the 2^nd defendant’s strike-out application, he had the right to file his evidence in reply on a review of the plaintiff’s evidence in opposition to the 2^nd defendant’s strike-out application.  The Confirmation sought impermissibly to restrict that right.

(3)  The plaintiff’s attempt to tie the disposal of the Exclusion Summons (brought solely against the 1^st defendant’s evidence filed in support of the 1^st defendant’s strike-out application)  to the 2^nd defendant’s provision of the Confirmation was wholly unreasonable.

8.  The 2^nd defendant eventually provided the Confirmation on 14 September 2020 by way of an affirmation after reviewing the plaintiff’s evidence filed on 11 September 2020.

9.  For the reasons set out above, I am not satisfied that the intended appeal by the plaintiff has a reasonable prospect of success. Accordingly, I order that the Leave Summons be dismissed.

10.  Further, I order that the plaintiff do pay forthwith the costs of the Leave Summons to respectively the 1^st defendant and the 2^nd defendant (with a Certificate for 2 Counsel for the 1^st defendant), such costs are to be taxed on the party and party basis if not agreed.  In all the circumstances, I do not consider it “appropriate” to award indemnity costs against the plaintiff.