NATURAL DAIRY (NZ) HOLDINGS LTD (IN PROVISIONAL LIQUIDATION) v. CHEN KEEN (alias JACK CHEN) AND OTHERS

HCA 2218/2017

[2023] HKCFI 306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2218 OF 2017

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D E C I S I O N   O N   C O S T S

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1.  By the decision dated 5 October 2022 (“the Decision”), this court allowed the application by the 1^st defendant (“Chen”) and the 3^rd defendant (“Ye”) for exceptions to the injunctions against them in part. Direction was given for written submissions in respect of costs of and occasioned by the application. Hence this ruling on costs on paper. The same abbreviations and definitions in the Decision are adopted here.

2.  The plaintiff asks for costs of the application up to the first hearing on 25 May 2022 and at least half of its costs since then. Chen and Ye ask for costs to follow the event on the basis of their success.

3.  The circumstances and outcome of the application were explained in the Decision, which will not be repeated here. Some circumstances relevant to the issue of costs were already rehearsed under the section on costs in the Decision.

4.  The application concerned the Legal Costs Exception and the Mortgage Repayment Exception. The plaintiff opposed both. Whilst the plaintiff was, in view of the nature of the application, entitled to leave it to its opponents to satisfy the court, the fact remained that it has maintained its opposition without real concession up to the ruling of the court. Therefore, the event of the application is still a matter of success or failure of the applying parties. Costs should be considered accordingly.

5.  Regarding the Legal Costs Exception, Chen and Ye achieved no more than half success in terms of items and quantum. Apart from some allowance under this exception, the application in respect of the release of the awarded costs of Chen’s aborted criminal trial then under appeal became academic, and that to vary the proprietary part of the injunction for the purpose of this exception was rejected.

6.  Regarding the Mortgage Repayment Exception, this court considered the circumstances pragmatically in the interest of both sides and, in line with such approach, acceded to the application with qualification that the onerous mortgage liabilities should well be removed by way of sale of the property at the appropriate time. The plaintiff did not labour much in its argument in respect of this exception.

7.  However, there was the adjournment of the hearing. Not only did this court refuse to find that the adjournment was attributable to the fault of the plaintiff, but Chen and Ye also took advantage of the adjournment to enable them to present their case fully, which eventually ended up with the extent of success mentioned in the Decision and above.

8.  Following such event, this court finds that Chen and Ye shall have 50% of their costs of their application up to and including the hearing on 25 May 2022 while the plaintiff shall have their costs of and occasioned by the adjournment on 25 May 2022 including 50% of the costs of the hearing on 5 July 2022. Costs shall be taxed, if not agreed, with certificate for two counsel.

9.  In view of the above, there will be no order as to costs of the submissions on costs. This part of the costs order is nisi, and shall in the absence of application to vary within 14 days become absolute without further order.