LOU SIU PING AND ANOTHER v. LAM TSZ MAN WOO PUI KI, KENNETH t/a KENNETH WOO & CO (A FIRM)

HCA 506/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 506 OF 2009

____________

_____________

D E C I S I O N

_____________

1. On 16 May 2012, I handed down judgment in this action, and made a costs order nisi that the 2^nd defendant (“Woo”) should pay the costs of the action. On 30 May 2012, Woo applied for the costs order to be varied, seeking an order that the costs of the action are to be paid by him on the District Court scale.

2. The parties do not dispute that costs are in the unfettered discretion of the Court.  Under the Judgment, the plaintiffs were awarded the sum of $808,800.  I also made an order that there be a separate assessment of the claim of the mortgagee costs and out of pocket expenses claimed to have been incurred by the plaintiffs. 

3. Woo claims that at the time of the issue of the Writ, the plaintiffs had no reasonable prospect of recovering a sum in excess of $1 million and that since the action should have been issued in the District Court, the plaintiffs should only be entitled to costs on the District Court scale.  In this regard, the parties are in substantial agreement that the relevant test should be the one set out in Lai Ki v B + B Construction Co Ltd [2003] 3 HKLRD 192, as adopted in Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd [2011] 3 HKLRD 425. 

4. The plaintiffs argue that when they commenced proceedings in the High Court in March 2009, they had reasonable prospects of recovering damages for inconvenience, discomfort, physical injury to health suffered by the 2^nd named plaintiff and for loss of use of the property which is the subject of these proceedings.  The plaintiffs claim that these, coupled with the loss of purchase price and wasted costs and expenses set out in paragraph 9 of the Amended Statement of Claim, would take their claim over $1 million. 

5. The short answer to this is that the damages for inconvenience, discomfort etc were never included by any pleas made in the Amended Statement of Claim filed in December 2009.  The only pleaded claims for damages are those particularised in paragraph 9 of the Amended Statement of Claim, being the loss of the purchase price paid for the property, wasted conveyancing costs, wasted decoration expenses and wasted legal costs, in the total sum of $874,000.  By their reply to Woo’s request for further and better particulars of the Statement of Claim dated 17 June 2009, the plaintiffs confirmed that they did not suffer any other loss and damage apart from those pleaded costs and expenses.  Even at trial, the plaintiffs did not, for their own reasons, pursue any other claim for damages. 

6. It is hence too late for the plaintiffs to refer to or to seek to rely on any other alleged damages as having been in their reasonable contemplation for recovery at the time when proceedings were first instituted.  If they were indeed contemplated then, they would and should have been pleaded.

7. For these reasons, the order for costs which I made on 16 May 2012 should be varied, such that the costs of the action between the plaintiffs and Woo are to be paid by Woo to the plaintiffs, with certificate for counsel, to be taxed on the District Court scale if not agreed.