POON YIU CHEUNG v. CHUNG KWOK WAN

1995, No.A2015
1996, No.A7571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

---------------

(Consolidated pursuant to the Order of
Master O'Donnell made on 29th January 1997)

---------------

--------------------------------------------

D E C I S I O N      O N      C O S T S

--------------------------------------------

1. After two days of hearing, the parties settled their disputes. The following is the Order that I have made by consent :-

1. There be judgment for the Plaintiff on the Claim in the sum of $270,000.

2. There be judgment for the Defendant on the Counterclaim in the sum of $16,071,400.

3. Accordingly, the Plaintiff do pay the sum of $15,801,400 to the Defendant or his solicitors within 14 days.

2. The parties, however, were unable to agree on costs and I was asked to decide on costs. Mr Reyes, Counsel for the Plaintiff, submitted that there should be no order for costs. Mr Tang, Counsel for the Defendant, submitted that the Defendant should be entitled to three quarter of the costs of the action.

3. The starting point is that both parties should be responsible for having the proceedings brought against them. On the Defendant's part, he had dishonoured the cheque drawn for the payment of the Placement Fee. On the Plaintiff's part, he had failed to pay the balance of the purchase price under the two agreements for the sale and purchase of shares. The settlement that was reached showed that the Plaintiff succeeded in recovering the Placement Fee together with interest while the Defendant succeeded in recovering the balance of the purchase price with interest. In my view it is not appropriate to make no order as to costs. In exercising the discretion, I have to consider the respective amount now recovered by the parties. Furthermore, it was only on the first day of the hearing that the Plaintiff reinstated his claim for the payment of the Placement Fee. Although this relief was sought when the action was commenced on 5th July 1996, it was deleted on 19th March 1997 when the Statement of Claim was amended and since then the Plaintiff had proceeded for a declaration that he had been discharged from his obligations under the second agreement and restitution of all monies paid by him to the Defendant under the second agreement. The order for costs is that the Defendant is entitled to two-third of the costs of the action.

(P. Cheung)

Judge of the Court of First Instance,
High Court