CHINA INDUSTRIAL SECURITIES INTERNATIONAL BROKERAGE LTD v. LOU YI

HCA 1073/2021

[2024] HKCFI 3179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1073 OF 2021

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DECISION ON COSTS

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1.  I refer to my Decision handed down on 16 August 2024 (the “Decision”). I adopt the same terms used therein.

2.  For the reasons set out therein, I allowed D’s appeal and granted him unconditional leave to defend.  In §54 thereof, I made reference to §14/7/18 of the Hong Kong Civil Procedure 2024.  I made a costs order nisi that P shall bear the costs of and occasioned by the Order 14 Summons (inclusive of this appeal for avoidance of doubt), with certificate for 2 counsel, to be assessed summarily (the “Order Nisi”).

3.  P has since made an application to vary the Order Nisi, from what it is to an order that the costs of and occasioned by the Order 14 Summons (inclusive of this appeal for avoidance of doubt)  be in the course of these proceedings.

4.  Mr Sik Chee Ching, counsel for P, has filed 2 submissions, one in support and one in reply.  Mr Vincent Lung, counsel for D, has filed his submissions in opposition.

5.  I have considered those submissions.  I have also considered the authorities submitted.

6.  §14/7/18 of the Hong Kong Civil Procedure 2024 states as follows:

“Costs on appeal—These costs normally follow the event, as in Warner v. Bowlby (1892) 9 T.L.R. 13, where the defendant was given conditional leave to defend, but on appeal the leave to defend was made unconditional, the plaintiff was ordered to pay all costs under O.14 and the money in court to be repaid to the defendant ...”

7.  I have re-considered that paragraph.  I have also considered Warner v Bowlby with the benefit of Mr Sik’s submissions.  I accept Mr Sik’s submissions that the costs order made in Warner v Bowlby turned upon its own facts, and in particular upon the Court’s views on appeal that the plaintiffs ought not to have resisted the defendant’s claim to defend.  I note also Mr Sik’s research that Warner v Bowlby has never been cited in Hong Kong.  I accept Mr Sik’s further submissions that Warner v Bowlby does not constitute any authority for the proposition stated in §14/7/18 of the Hong Kong Civil Procedure 2024 as cited above.

8.  In the event of unconditional leave to defend being granted (as opposed to the application for summary judgment being dismissed), the usual order is for the costs be in the cause – §14/7/13 of Hong Kong Civil Procedure 2024, and Greater China Capital Inc v GBtimes Ltd [2018] 1 HKLRD 210, at §§11.1-12.2.

9.  Mr Lung does not dispute that that is the usual order.  He however submits that on the facts of the case, the Order 14 Summons should not have been taken out.  He submits, alternatively and at the very least, that upon perusal of Lou 3^rd (or at the latest Lou 4^th and Lou 5^th), it should be plain that arguable defences have been raised and P should have withdrawn its application.

10.  I accept those alternative submissions of Mr Lung.  I repeat also the procedural history which I have set out in §7 of the Decision.

11.  On the facts of the case, in respect of the costs below, I accede partly to P’s application, and order that P shall only pay D the costs of and occasioned by the substantial hearings before Master D To (which took place on 10 April 2024 with decision delivered on 11 April 2024).  The other costs of and occasioned by the Order 14 Summons below be in the cause.

12.  In respect of the costs of the appeal.  D has been successful.  At §7(c)  of the Decision, I observed that Ms Wong has in her written submissions “regrouped the matters raised into 4 groups”.  The regrouping in my view is only presentational, and does not affect the substance of the proposed defences.  I see no basis to vary the part of the Order Nisi concerning the appeal.

13.  For the reasons set out above, I accede partly to P’s application to vary.  I make an order absolute that:

(a)  In respect of the costs below:

(i)  P shall bear the costs of and occasioned by the hearings of the Order 14 Summons before Master D To on 10 April 2024 (with decision delivered on 11 April 2024), and that

(ii)  The costs of and occasioned by the Order 14 Summons below otherwise be in the cause; and

(b)  In respect of the costs of this appeal, P shall bear the costs of and occasioned by the same;

(c)  There be certificate for 2 counsel (where more than one was engaged); and

(d)  All costs as ordered to be borne by P be summarily assessed.

14.  In respect of those costs of this application to vary, neither party is entirely successfully.  I will make no order as to costs.

15.  For summary assessment, D is directed to filed her Statement of Costs within 7 days from the date hereof, P to file its Statement of Objection within 14 days thereafter, and D to file her reply within 7.