WONG SEE LUNG v. HUANG HUA JIANG AND OTHERS

HCA 2067/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2067 OF 2009

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DECISION  ON COSTS
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1. In the judgment delivered on 1 September 2014, I gave judgment to the plaintiff and made costs order nisi that as between the 3^rd and 4^th defendants and the plaintiff, the 3^rd and 4^th defendants do pay the plaintiff costs of the action, to be taxed if not agreed, on party-and-party basis. The plaintiff applies to vary the above costs order in the following ways:-

(i) costs to be taxed on indemnity basis; and

(ii) with certificate for two counsel.

2. I can quickly deal with second variation sought.  It is made on the basis of complexity in the case.  I disagree.  This case is not particularly complex and the amount of papers involved is not voluminous as compared to any ordinary commercial cases. I decline to give certificate for two counsel.

3. On the first variation sought, I agree with the observation made by Cheung J (as he then was) in Non-No Fashion Wholesale Limited v. Chung Kam Wing & Shu Man Lee, HCA 20335/1998 (31 January 2001) that indemnity costs are clearly appropriate in cases of fraud.  I had found that the 3^rd and 4^th defendants acted fraudulently in making the misrepresentations.  I am thus prepared to vary my costs order such that it would be taxed, if not agreed, on indemnity basis.

4. Counsel for 3^rd and 4^th defendants argued that there should be some form of apportionment.  I agree that I should bear in mind one matter in relation to the “trial costs”.  I had ordered that as between the 2^nd defendant and the plaintiff, each party should bear its own costs.  The 2^nd defendant was represented by counsel during the trial.  He participated in cross-examination of some witnesses and had made submissions at various stages.  The trial took 8 days.  I assess that some trial time were spent on the case between the plaintiff and the 2^nd defendant but that was in any event less than one day.  The 1^st defendant did not appear at the trial and interlocutory judgment had been entered against him long before.  It is thus fair to say that of the total time spent during the trial, 7/8 were spent on the battle between the plaintiff on the one hand and the 3^rd and 4^th defendants on the other.  In dealing with trial costs, I should only order the 3^rd and 4^th defendants to pay 7/8 of the trial costs to the plaintiff.

5. In the circumstances, I vary my costs orders between the plaintiff and the 3^rd and 4^th defendants as follows:-

(i) the 3^rd and 4^th defendants do pay the plaintiff costs of the action, save that they are only ordered to pay to the plaintiff 7/8 of the costs incurred at the trial hearings on 5-8, 11-13 and 15 August 2014; and

(ii) such costs shall be taxed if not agreed on indemnity basis.

6. Furthermore, I make no order of costs in relation to the application for variation of my costs orders nisi.