LAU TAK LUN AND ANOTHER v. HO KA YAN

DCCJ 7604/2024

[2025] HKDC 1529

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 7604 OF 2024

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BETWEEN

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DECISION ON COSTS

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1.  By order dated 25 July 2025 I made an order nisi that costs of and occasioned by the Defendant’s application for setting aside default judgment be to the Defendant, to be taxed if not agreed. I ordered that if there is no application before the court to vary the order within 14 days, the costs order nisi will be absolute. By a paper application by letter dated 7 August 2025, the 1^st and 2^nd Plaintiffs applied to vary the costs order nisi and contended that they should be entitled to costs as the judgment that is sought to be set aside was a regular one. By letter dated 17 August 2025 the Defendant filed her opposition to the 1^st and 2^nd Plaintiffs’ application to vary costs order nisi.

2.  I have considered the grounds relied on by the 1^st and 2^nd Plaintiffs and the Defendant.

3.  Of particular relevance is the case Harbour Hero Enterprises Ltd v Chau Nung Tai [2019] HCA 565, relied on by the 1^st and 2^nd Plaintiffs. The Court of Appeal considered that in that case where a regular judgment was set aside on the basis that the defendant’s case showed a real prospect of success, the proper approach was for costs to be allowed for the plaintiff up to when the merits of the defendant’s case were disclosed, ie when the summons for setting aside the default judgment was filed with the defendant’s supporting information (including costs of perusal). The costs for resisting the setting aside application should follow the event and should be borne by the plaintiff. In the present case, I adopt the same approach. I consider that the merits of the Defendant’s case is disclosed by the date of the Defendant’s first affirmation, which is dated 26 February 2025, filed together with her summons of the same date to set aside default judgment.

Disposition

4.  I order that the costs order nisi be varied to the extent that the 1^st and 2^nd Plaintiffs should have their costs incurred up to 26 February 2025 (including costs of perusal), and the costs for resisting the setting aside application, including the hearing dated 7 July 2025, is to be borne by the 1^st and 2^nd Plaintiffs.