NG YIN NEI v. LEE CHICK CHOI

HCMP 1131/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1131 OF 2013

(ON AN INTENDED APPEAL FROM DCCJ NO. 563 OF 2010)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Fok JA (giving the Judgment of the Court):

1.  By summons dated 20 May 2013, the defendant, acting in person, seeks leave to appeal against a costs order made in a judgment of Chow DJ dated 10 October 2012 on the footing that leave to appeal was “dismissed” by the Judge on 10 May 2013.

2.  In his judgment dated 10 October 2012, the Judge found in favour of the defendant on part of his counterclaim and made an order nisi that the plaintiff pay the defendant 80% of the costs of the counterclaim.

3.  At a hearing on 15 November 2012, the Judge dismissed the defendant’s application to vary the costs order nisi which then became absolute.

4.  By summons dated 3 May 2013, the defendant again applied to the Judge for a variation of the costs order nisi.  By his Decision dated 10 May 2013, the Judge held that the variation application had already been heard so the re-application must be dismissed.

5.  In that Decision, the Judge went on to say that, even if the application were an application for leave to appeal, he would not give leave.  He said that because he was aware that leave to appeal against the judgment dated 10 October 2012 was granted to the defendant and that the question of costs could be raised at the end of that appeal depending on its outcome.  Therefore, even if the summons of 3 May 2013 was an application for leave to appeal it was unnecessary.

6.  In our judgment, the Judge was quite right in reaching that conclusion.  The application made by the defendant by summons dated 3 May 2013 was wholly unnecessary.  Both the plaintiff and the defendant had applied for leave to appeal against the judgment dated 10 October 2012 and the plaintiff also applied for leave to appeal against the costs order made on 15 November 2012 in respect of the defendant’s application to vary the costs order nisi.  On 5 February 2013, Barma JA granted leave to both parties to appeal and directed the plaintiff to file notices of appeal against the judgment and directed the defendant to then file a notice to vary/cross-appeal in response to the plaintiff’s appeal.

7.  The plaintiff has filed notices of appeal in CACV 28/2013 and CACV 29/2013 accordingly and, in turn, the defendant has also filed a notice of cross-appeal in CACV 28/2013.  In that notice of cross-appeal, the defendant seeks to set aside the order for costs made by the Judge on his counterclaim and to substitute an order that the plaintiff pay the defendant 100% of the costs of the counterclaim.

8.  We would make the observation, however, that although the notice of cross-appeal challenges the costs order, the grounds of the cross-appeal do not include grounds challenging the Judge’s costs order.  Such grounds are set out in an attachment to the summons dated 20 May 2013.  It is a matter for the defendant to consider whether his existing notice of cross-appeal in CACV 28/2013 should be amended pursuant to O.59 r.7 to include those grounds so that the Court of Appeal can consider them when his cross-appeal is heard.

9.  The Judge’s conclusion in the Decision that the summons dated 3 May 2013 was unnecessary being correct, we dismiss the defendant’s summons dated 20 May 2013 seeking leave to appeal.

10.  Since we consider that the application is totally without merit, we make an order under O.59 r.2A(8) that no party may request the determination to be reconsidered at an oral hearing inter partes.

11.  Since the plaintiff did not file any statement in opposition to the summons, we make an order nisi that there be no order as to the costs of the defendant’s summons.