PIERHEAD GARDEN MANAGEMENT CO LTD v. THE INCORPORATED OWNERS OF PIERHEAD GARDEN

HCA 559/2013

[2021] HKCFI 2161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 559 OF 2013

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DECISION ON COSTS

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1.  I refer to my Judgment handed down on 16 March 2021. I refer in particular to the costs order nisi (the “Costs Order Nisi”)  I made at §140 of the Judgment, that P shall have 80% of the costs of its claim, to reflect the facts that it does not obtain all the relief it sets out to seek, and that D is successful in respect of the 650 undivided shares, with certificate for two counsel, and that there be no further costs order in respect of D’s defence and counterclaim.

2.  By submissions of 29 March 2021[1], D applies to vary the Costs Order Nisi such that there be no order as to costs in respect of both P’s claim and D’s defence and counterclaim, on the bases that:

(a)  this Court dismissed P’s alternative case that, even if P were held not the legal and beneficial owner of Loading Bays 1-10 and the Adjoining Platform, P would nonetheless have the exclusive use and control of and the right to manage the same; and

(b)  P failed to claim substantial amount of damages from D, which D says was one of the main objectives of P’s claim.

3.  By submissions of 11 May 2021[2]:

(a)  P objects to D’s application, principally on the basis that P is substantially the successful party in the Action;

(b)  P also seeks to vary the Costs Order Nisi so that 2 sets of reserved costs be also covered.

D’s application to vary

4.  Clearly, P is substantially and overwhelmingly the successful party in the Action. 

5.  P is successful in 9 of the 10 Issues.

6.  P is the successful party even in respect of Issues 2 and 3.  It was only one alternative submission or interpretation put forward in support of those Issues which I did not accept.  No separate or discrete claim has been put forward by P, and no additional evidence was required to be considered — contrast with Cheng Ka Shing v Bonus Plus Company Limited [2020] HKCFI 828 and Chan Lan v Shing Kei, HCA 1206/2006, 16 June 2008. 

7.  Substantial damages have been awarded to P, in the forms both of special and general damages.  I reject Mr Chan’s submission that P has failed to claim substantial amount of damages.

8.  In respect of Issue 10, I refer to the special features which I have highlighted at §§133 and 134 of the Judgment.  I accept Ms Eu’s submission that this was not a case of P refusing to make the transfer, but one of P not having been able to do so, and that the “conditional order” granted by this Court goes no further than reflecting the position that P has taken.

9.  Having considered parties’ submissions and the authorities that have been cited to me, I remain of the view that the Costs Order Nisi has adequately and fairly taken account of the matters raised by D, and that this Court has exercised the discretion as to costs “in a principled way with a view to reality and justice”[3].

10.  I refuse D’s application to vary.

P’s application to vary

11.  The reserved costs relate to:

(a)  the costs of P’s summons filed on 9 April 2013 for interlocutory injunctive relief, as reserved by the Order of Deputy Judge Marlene Ng (as she then was)  of 12 April 2013; and

(b)  the costs of the CMC on 14 April 2016, as reserved by the Order of Master Hui of even date.

12.  P’s application for injunctive relief was in my view justified.  There is further no unusual feature which calls for a deviation from the usual order that costs of the CMC be in the cause of the Action.

13.  No contrary submission has been made on D’s behalf.

14.  I vary the Costs Order Nisi as follows, that:

(a)  P shall have 80% of the costs of its claim, including (1) the costs of P’s summons filed on 9 April 2013 for interlocutory injunctive relief, as reserved by the Order of Deputy Judge Marlene Ng (as she then was)  of 12 April 2013, and (2) the costs of the CMC on 14 April 2016, as reserved by the Order of Master Hui of even date, with certificate for two counsel;

(b)  no order as to costs in respect of D’s defence and counterclaim;

(c)  the costs are to be taxed if not agreed.

15.  For the avoidance of doubt:

(a)  P has only raised two specific sets of reserved costs.  The Costs Order Nisi is varied to cover those additional reserved costs only;

(b)  P is to have, like all other costs of the Action, 80% of those reserved costs to reflect the overall position that I have highlighted and considered at §140 of the Judgment.

16.  In my view, D’s application to vary is unrealistic. P is to have the costs of these applications to vary, to be taxed if not agreed, but with certificate for junior counsel only.