TING SHUK MAN, SYLVIA v. WONG TAK, by WONG KOWK LEUNG his guardian ad litem

HCA 1440/2016

[2020] HKCFI 2435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1440 OF 2016

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DECISION ON COSTS

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1.  On 12 March 2020, I handed down my Judgment (the “Judgment”) dismissing the Plaintiff’s claim in its entirety. I also made a number of Declarations in favor of the Defendant. On costs, I made a costs order nisi (the “Costs Order Nisi”) that the Plaintiff shall pay the Defendant the costs of these proceedings, to be taxed if not agreed.

2.  By submissions dated 16 June 2020, Ms So, counsel for the Defendant, seeks to vary the Costs Order Nisi such that the Plaintiff shall pay the Defendant costs of the proceedings on an indemnity basis, with certificate for two counsel. 

3.  By her submissions dated 14 June 2020 [sic], Ms Lam, counsel for the Plaintiff, resists both variations. 

Indemnity costs

4.  The legal principles applicable to an application for indemnity costs are not in dispute — see Town Planning Board v Society for Protection of the Harbour Ltd (2004) 7 HKCFAR 114, per Li CJ at §§12‑16.  I will not repeat them.

5.  Ms So’s main submission is that the Plaintiff’s claims were hopeless, vexatious and/or frivolous.  That is reinforced by a Calderbank letter issued by the Defendant’s solicitors with a “drop hands” offer.

6.  Ms Lam’s main submission is that the Defendant has failed to discharge his burden in proving that an indemnity costs order is warranted and appropriate in the circumstances of the present case.

7.  I have set out my analysis of the issues involved in the case in the Judgment:

(a)     In respect of the Contractual Capacity Issue, for the reasons set out at §44 thereof, I formed the view that the parties’ intentions were clearly that the Plaintiff entered into the 2012 TA as agent for Mr Chiong.  The Plaintiff’s case that she did so personally as principal and landlord was in my view bound to fail;

(b)     In respect of the Tenancy by Estoppel Issue, having considered the authorities, I observed at §80(a) of the Judgment that the subjects of the dispute between the parties in the present case were fundamentally and clearly different from those authorities which concerned tenancy by estoppel.  Further, no case has been made out for any extension of the principles concerned.  In my view, the Plaintiff’s reliance on tenancy by estoppel was extremely strained, and verged on being misconceived.

8.  In my view, the above, together with the usual features I have summarized at §2 of the Judgment, constitute “special or unusual features” which make this case an appropriate one for indemnity costs.

Certificate for two counsel

9.  The facts of the case were largely not disputed. 

10.  No heavy documentation was involved.

11.  The amount involved was not substantial.

12.  Examination of witnesses was not extensive.

13.  There are legal issues involved.  But the related legal research ought not to have been complex.  It is a question of locating the right cases concerning, principally, the doctrine of tenancy by estoppel.  The analysis of the authorities located might require expertise and skill, but which a senior junior or a silk is perfectly capable of doing without necessarily the assistance of any junior.

Conclusion

14.  I vary the Costs Order Nisi to the extent that the Plaintiff shall pay the Defendant the costs of these proceedings on an indemnity basis, to be taxed if not agreed.  Those costs are to include 75% of the costs of this application to vary (hence to include the costs of the Summonses of 6 May 2020 and 27 May 2020) to reflect my refusal to give a certificate for 2 counsel).  While the engagement of a silk or a senior junior is appropriate, I remain not satisfied that this is an appropriate case for two counsel.