HUI SHU LEUNG v. WAH FUNG FOREST RESOURCES LTD

HCA 814/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 814 OF 2010

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BETWEEN

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R U L I N G

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1.  There are occasions when, if not a breakdown in communication, certainly misunderstandings will give rise to summonses such as this one, where in fact the parties had come sufficiently close to resolving this matter without the necessity for what has no doubt now become an expensive hearing relative to the rather minor nature of the dispute.

2.  The plaintiff, Mr Hui, having succeeded in the appeal, was plainly, I would have thought, entitled to the costs of the appeal, and when I say “the appeal”, there were in fact two appeals; but the difficulty that arose was that, based on my judgment, Mr Cheung Hing was not a party, and therefore that was the basis upon which I found that the learned master had fallen into error.

3.  The only way that Mr Cheung could be made susceptible to an order for the costs of the appeal, which he had resisted very strongly through leading counsel, was that he had to be joined in the action for the purposes of making an order for costs against him. There is a proper mechanism for that under Order 62 of the Rules of the High Court.

4.  I have looked at the correspondence very carefully, and there has been very helpful argument on it today, and I think, as Miss Lau and Miss Wong rightly recognise, the cut-off date is 9 July, which is a letter written by Miss Wong - no doubt it was Miss Wong, being Mr Cheung’s solicitor - and the significant part of the letter is the final paragraph, where it says:

“Purely for the sake of saving time and costs, we are instructed that our client would be prepared to bear the costs of your client’s two appeals. Kindly let us have your draft consent summons to vacate the hearing of 18 July...”

which was the original date fixed for the hearing of the Order 62 summons.  And then the letter goes on:

“...for our consideration at your earliest convenience.”

5.  The next response from the plaintiff was dated 13 July.  In the meantime, what the plaintiff’s solicitors had done was on the very next day; taking the view that the concession that appears to have been made in the letter at page 51 plainly had not gone far enough, was to instruct Miss Lau to prepare her skeleton argument for the substantive hearing of the Order 62 summons, and the matter really has grown from there.

6.  I have come to the conclusion that there is fault on both sides here.  Plainly, the response of the plaintiff after the letter of 9 July simply was not good enough.  They moved far too quickly to instruct Miss Lau. There were ample signs of consensus and concession on behalf of Mr Cheung for the matter to be further investigated.  It was not, and then there is this letter of 13 July which did not advance the matter at all, and then, of course, we can see through the correspondence that the disagreement grew to the extent that we have now had this contested hearing and costs have been incurred in a far more substantial way than really should have happened had the parties reflected more carefully on the matter following that letter of 9 July.

7.  I take the view that of course the plaintiff is entitled to the costs of the two appeals and of the Order 62 application, and I am going to say up to and including 9 July, but thereafter, I take the view that there should be no order for costs, and that is to include the costs of this hearing.  I think both parties could have dealt with the matter in a much more satisfactory way than they have, and it strikes me that from Mr Cheung Hing’s situation rather than taking the matter up as aggressively as they did in the correspondence, this could all have been made much clearer, and it simply was not. So far as the plaintiff is concerned, I rather think his solicitors far too precipitously after that letter of 9 July, as I have already indicated.

8.  So after 9 July, no order for costs.  Each party will bear their own, including the costs of today.