CHAN YAT MAN v. TUNG PO (H.K.) TECHNOLOGY ENTERPRISE LTD

HCA 2904/2017

[2025] HKCFI 4400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2904 OF 2017

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DECISION ON COSTS

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1.  I refer to my Judgment handed down on 23 September 2022[1] (the “Judgment”). I adopt the same terms and abbreviations used therein.

2.  By the Judgment, I dismissed P’s Claim and allowed D’s Counterclaim to the extent of HK$262,155.67 in terms of monetary damages.  On costs, I made a costs order nisi that P shall bear the costs of both the claim and the counterclaim (including all costs reserved and in the cause, save those costs in respect of D’s application to adduce additional documents recorded in Section B of the Judgment), to be taxed if not agreed (the “Costs Order Nisi”) .

3.  By summons of 7 October 2022 (the “Variation Summons”), P seeks variation of the Costs Order Nisi from what it is to the following (the “Substitution Costs Order”):

The Plaintiff shall bear the costs of the Claim (including all costs reserved and in the cause, save those costs in respect of the Defendant’s application to adduce additional documents recorded in Section B above), to be taxed if not agreed, and there be no order as to costs of the Counterclaim.

4.  P subsequently appealed against the Judgment.

5.  In the light of the then pending appeal, parties by consent agreed that the Variation Summons be adjourned sine die pending the outcome of the appeal.  On 26 October 2022, I made an order to that effect.

6.  The appeal was heard on 10 April 2025, and was dismissed with costs at the conclusion of the hearing that day.  The Reasons for Judgment was handed down by G Lam JA on 12 May 2025.

7.  By letter of 26 May 2025, WK To on P’s behalf sought to have the Variation Summons restored.

8.  Having consulted parties, I handed down directions with the view of disposing of the Variation Summons on the papers.

9.  Mr Ho and Mr Lau continue to represent respectively P and D.  On 23 July 2025, Mr Ho lodged his written submissions for P.  On 20 August 2025, Mr Lau lodged his written submissions in opposition.  On 9 September 2025, Mr Ho filed his submissions in reply.

10.  I have considered those submissions.

11.  In gist, Mr Ho refers to the matters which this Court recorded at §25 of the judgment in respect of the Counterclaim, and the fact that out of the remaining Payments which D continued to pursue (Payments #1-7, and #11-12), it was only successful in respect of Payments #3 to #5.  He submits therefore that there should either be no order as to the costs of the entire Counterclaim, or that D shall have the costs for Payments #3 to #5, while P shall have those for the balance of the Payments.

12.  I dealt with the D’s Counterclaim at section N of the Judgment.

13.  I accept Mr Ho’s submissions that each of D’s counterclaims for the 12 Payments is a separate head of claim.  They were not just issues or allegation that D had made.  I accept his submission that the 3^rd of the Elgindata principle (as discussed in Re Elgindata Ltd (No.2) [1992] 1 WLR 1207) has no application.

14.  Properly analyzed, D was the successful parties in respect of Payments #3 to #5, while P was the successful party in respect of the balance.  Each of them was an event.  Costs following the event is a relevant consideration.

15.  Mr Lau submits that the costs and time spent on those Payments which D failed to establish were “no more than trifling proportion of the total costs/time.”

16.  They might be of trifling proportion when all costs (including those of the claim) are taken into account.  But as compared with those spent on Payments #3 to #5, the costs and time spent on them were comparable, and were not of trifling proportion.

17.  Adopting a broad-brush approach, the costs of those Payments which D succeeded broadly cancel out those which P succeeded in defending.

18.  In all the circumstances, and in the exercise of my discretion, I accede to the Variation Summons.  I order that the Costs Order Nisi be varied from what it is to the Substitution Costs Order as set out in the Variation Summons.  I see no factor against the adoption of this approach.

19.  I order that D shall bear the costs of and occasioned by the Variation Summons, with certificate for counsel, to be taxed if not agreed, and to be set off against the costs which P otherwise shall bear.