特廣有限公司 v. 華都中心業主立案法團 AND OTHERS

HCMP 1063/2019

[2023] HKCFI 975

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1063 of 2019

________________

________________

________________

________________________________

D E C I S I O N    O N    C O S T S

________________________________

THE JUDGMENT

1.  The terms and nomenclature in this Judgment on Costs follow those in my Judgment dated 23 February 2022.

2.  By my Judgment dated 23 February 2022, I found the IO to have breached its Undertaking and to have committed contempt in respect thereof. The breach was cured relatively soon after. I did not impose any sanctions beyond costs.

3.  In paragraphs 66 to 70 of my Judgment, I set out my reasoning for an Order nisi that the IO should pay Owner its costs on a party to party basis, to be taxed if not agreed, and for there be no order as to costs between Owner and R2-8. For the avoidance of doubt, I clarified that Owner would not need to separate out any costs as incurred against R2-8 when recovering its costs from the IO.

4.  In paragraph 71, I noted that it would be far from ideal to incur more costs to argue about costs.

THE IO’s APPLICATION

5.  Regrettably, it has become necessary to incur more costs. The IO has applied to vary my Order nisi to an Order for no order as to costs.

6.  Mr Ko, Counsel for the IO, offers essentially three arguments.

(1)  Owner did not succeed on the grounds stated in its statement in support of its application for committal.

(2)  The IO was only in breach for 10 days, which did not justify the commencement of contempt proceedings.

(3)  The IO “made its position clear and put all cards on the table in the affirmations”, whereupon Owner should not continue to pursue these proceedings.

MY DECISION

7.  I have already referred to the history of the parties’ animosity in my earlier Judgment. The parties’ positions in commencing, defending, and indeed maintaining these proceedings would have to be assessed in the light of that history.

8.  As I noted in my Judgment, the IO has behaved unreasonably and bears more of the responsibility for the escalation and continuation of the conflict. Indeed, the way it “made its position clear and put all cards on the table in the affirmations” just added to this. As I noted, whilst the IO may have literally (but belatedly) complied with the Undertaking, it did not put all cards on the table. It certainly did not provide the calculations which Owner would reasonably expect. I do not agree with Mr Ko’s third argument.

9.  The fact is the IO’s breaches were cured relatively soon was already taken into account in my Judgment. For the reasons already stated, I believe the appropriate consequence to be no sanctions beyond costs. Mr Ko’s second argument does not change those reasons.

10.  Mr Ko’s first argument is perhaps his strongest. It caused me to reconsider if I have unfairly found against the IO on a basis not stated in Owner’s statement.

11.  After a careful rereading of the papers and the submissions, I conclude that I have not unfairly found against the IO. As Mr Ko accepts in his submissions to vary my Order nisi, Owner did allege there to a breach. Mr Ko’s point is that Owner did not acknowledge the breach to have been already cured. Whilst Owner mounted a more ambitious case and did not succeed fully, there was enough in the statement to support a finding of the “lesser” breaches.

12.  As I pointed out in my Judgment, the figures which the IO had provided were unclear, suspicious, and unconvincing and that it should be more cooperative and transparent. I could not order the IO to act properly only because that was not the purpose of contempt proceedings.

13.  The parties’ latest submissions do not reveal whether the IO has finally shown proper calculations. This is irrelevant to my present task. But I hope there is no further litigation brewing.

14.  The IO’s application is dismissed, and costs of the application be to Owner, with certificate for counsel.