ZHAO ZHI QIANG v. ZHAO ZHIGUANG AND ANOTHER

HCA 1614/2019

[2023] HKCFI 382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1614 OF 2019

______________________

BETWEEN

______________________

___________________________________________

DECISION
(Variation of Costs Order Nisi)

___________________________________________

Introduction

1.  On 3 November 2022, this Court handed down a judgment declining to order default judgment sought by P (“Judgment”). This Court ordered, amongst others, as follows:

(1) No order made in relation to P’s Sanction Summons for judgment in default of defence against D1;

(2) P’s application for judgment in default of defence against D2 be adjourned sine die with liberty to restore;

(3) Retrospective leave to D1 to file and serve D1’s 7^th affirmation in compliance with the order dated 13 May 2021.

2.  This Court made a costs order nisi, that D1 shall pay P’s costs of paragraph 1 of the Sanction Summons (in relation the default judgment against D1), and the P’s costs of the Relief Summons, with certificate for one counsel and costs of paragraph 2 of the Sanction Summons (in relation to default judgment against D2) be reserved (“Order Nisi”).

3.  Thereafter, both P and D1 applied to vary the Order Nisi.

4.  In D1’s summons issued on 22 November 2022, the variation sought by D1 is as follows:

(1) P to pay D1’s costs of and incidental to (a) paragraph 1 of the Sanction Summons and (b) the Relief Summons;

(2) Alternatively, D1 to pay P’s costs of and incidental to (a) paragraph 1 of the Sanction Summons and (b) Relief Summons up to 21 March 2022 (date of service of the 12^th affidavit of Mr Tsui exhibiting D1’s 7^th affirmation), and that P to pay D1’s costs thereafter.

5.  In P’s summons issued on 23 November 2022, the variation P sought is for costs of paragraph 1 of the Sanction Summons and costs of the Relief Summons be paid by D1 to P forthwith, with certificate for 2 counsel, and such costs be summarily assessed.

6.  This Court directed that the above two summonses (collectively “Variation Summonses”) to be determined on paper without an oral hearing.

7.  In this decision, I shall continue to adopt the nomenclature and abbreviations in the Judgement, unless otherwise indicated herein.

Discussion

8.  As set out in paragraph 31 of the Judgment, there were 3 contentions on behalf of D1 as to why this Court should not grant default judgment as sought by P.

9.  The 1^st contention was that the Unless Order was a ‘time order’ The 2^nd and 3^rd contentions were that there had been compliance of the Disclosure Order, failing which there should be relief from sanction.

10.  Much time was spent on the 1^st contention which was D1’s primary contention at the hearing. The Court had to be referred to the relevant authorities and the Transcript of the hearing on 13 May 2021. This was an issue which D1 had clearly failed.

11.  As noted in the Judgment, the Relief Summons was only issued on behalf of D1 on 20 April 2022, some 4 months after P issued the Sanction Summons. Further, although Mr Tsui had in his 12^th affidavit exhibited a copy of D1’s notarised 7^th Affirmation, the 7^th Affirmation was not properly filed until 8 July 2022, some 6 weeks before the hearing before this Court.

12.  D1 filed the 7^th Affirmation to oppose the Sanction Summons, but in his 7^th Affirmation, he also provided further information/explanation/clarification and/or confirmation of information disclosed in numerous documents produced in his earlier affirmations. What was clear was that it was only upon considering the same in D1’s 7^th Affirmation that the Court came to the view that there has been “literally complete compliance” of the Discovery Order and the Unless Order. The Court gave retrospective leave for D1 to file and serve his 7^th Affirmation in compliance with the Discovery Order and the Unless Order and granted relief from sanction to D1. It was clear that D1 had also failed in his 2^nd contention in that there had been compliance and only obtained relief under his 3^rd contention.

Conclusion and order

13.  Having considered the above, this Court is not prepared to vary the Order Nisi as sought by D1. D1’s Variation Summons is to be dismissed.

14.  As for the variation sought by P, even though the value of the P’s claim is not insubstantial, the Sanction Summons and the Relief Summons did not involve complicated legal issues or arguments. This Court is not prepared to grant a certificate for two counsel as sought by P, but in line with the approach in most interlocutory applications, the Court will order the costs to be summarily assessed, and to be paid by D1 within 21 days after summary assessment. P’s Variation Summons is allowed to such extent.

15.  As for costs of D1’s Variations Summons, P’s costs are to be paid by D1, such costs to be summarily assessed and to be paid by D1 within 21 days after summary assessment.

16.  As for P’s Variation Summons, P did not succeed in seeking a certificate for two counsel, and D1 did not really oppose summary assessment. Having considered this, I make no order as to costs.

17.  P is to lodge his statement/s of costs within 14 days, and D1 to lodge his list/s of objections 14 days thereafter.