CHRISTIAN EMIL TOGGENBURGER AND OTHERS v. LUU, HUNG VIET DERRICK AND OTHERS

HCA 815/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 815 OF 2009

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DECISION ON COSTS

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1. Very briefly, despite the able and persuasive submissions put forth on the 2^nd and 3^rd defendants’ behalf, I do not consider there is anything special or unusual in this action such as would justify indemnity or common fund costs to be awarded.

2. The outcome of this action depended principally on an assessment of the witnesses’ credibility and reliability.  It was an exercise which involved (among other things) an examination of their testimony against the documents adduced during the trial.  This is an exercise commonly found in ordinary commercial (and other) litigations. 

3. The authorities relied on by the 2^nd and 3^rd defendants (where indemnity or common fund costs have been awarded) were distinguishable on the facts.  For example, in Yi Chun Navigation Inc v Lu Wen Yun, Jenny and Another, unreported, HCCW 565/2006 (7 January 2011), the court observed that the witness has “shown scant regard for the truth in her evidence” and in Mahonia Limited v JP Morgan Chase Bank and Another (Lexis Transcript) 10 August 2004, a party maintained an unfounded allegation despite having had the chance to listen to, and consider, the relevant taped conversation. 

4. Further, I agree with the plaintiffs that the parties’ conduct is also a relevant factor.  The lack of proper and/or complete documentation on the 2^nd and 3^rd defendants’ part in relation to the plaintiffs’ money is a factor which should tip the balance in the plaintiffs’ favour (and against them).  In such circumstance, it cannot be said the plaintiffs have been entirely unreasonable to have commenced, and pursued, this action.

5. For the above reasons, this application is refused.