BEST PROFIT CONSTRUCTION ENGINEERING LTD v. WUI YIP CIVIL ENGINEERING LTD

DCCJ 1981/2023

[2026] HKDC 1437

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1981 OF 2023

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BETWEEN

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DECISION

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A. Application to vary costs order nisi

1.  By way of the Judgment dated 5 June 2026 ([2026] HKDC 1020), I found in favour of the plaintiff and awarded $2,305,065.30 in damages, plus interest. I also granted a costs order nisi that the defendant do pay 75% of the plaintiff’s costs (including all costs reserved), together with a certificate for counsel.

2.  The plaintiff issued a Summons on 12 June 2026, applying to vary the costs order nisi and the award of interest pursuant to Order 22 rule 24 of the Rules of the District Court (Cap 336H).

3.  Directions were given for the parties to file their respective written submissions to allow this court to dispose the plaintiff’s application on paper. Whilst the plaintiff filed its submissions on 29 June 2026, no submissions have been received from the defendant by the deadline imposed by the directions. I find it appropriate to consider the plaintiff’s application in the absence of submissions from the defendant.

B. Basis of the plaintiff’s application

4.  The plaintiff points to its sanctioned offer dated 3 January 2024, by which it proposed to accept $2 million in full and final settlement of the present case.

5.  Having considered the content of the sanctioned offer, I accept that the plaintiff has complied with all the procedural requirements for putting forward a valid sanctioned offer. I accept the plaintiff’s affirmation evidence that it has properly served the sanctioned offer on the defendant on the same date. However, the sanctioned offer has not been accepted by the defendant.

6.  It is obvious that the plaintiff has obtained a judgment which is more advantageous than the terms of the sanctioned offer.

C. Decision

7.  The consequences regulated by Order 22 rule 24 shall apply unless the defendant shows that it is unjust to do so: Antwerp Diamond Bank NV v Brink’s Incorporated (No 2) [2015] 4 HKLRD 628.

8.  Since the defendant has not filed any written submissions and/or evidence to respond to the plaintiff’s application, I find it not unjust to impose the consequences regulated by Order 22 rule 24.

9.  Pursuant to Order 22 rule 24(3)(a), the plaintiff applies to vary the costs order nisi such that the defendant is required to pay 75% of the plaintiff’s costs on indemnity basis since 1 February 2024, ie the day after the 28-day period within which the defendant could have accepted the sanctioned offer without leave from the court. The plaintiff is content to be paid only 75% of its costs as apportioned in my Judgment, based on the reasons explained therein.

10.  I find the plaintiff’s application for indemnity costs reasonable, and I order the costs order nisi be varied as proposed.

11.  Pursuant to Order 22 rule 24(2), the plaintiff applies to vary the interest payable on the damages to 4% above the judgment rate, instead of the statutory maximum of 10% above the judgment rate, from 1 February 2024 until payment.

12.  I accept that 4% above the judgment rate is appropriate in the circumstances of the present case. Such an interest rate is routinely accepted as reasonable in numerous cases in which a defendant fails to reasonably accept a sanctioned offer put forward by a plaintiff.

D. Conclusion

13.  The costs order nisi and the award of interest in the Judgment be set aside and be replaced by the following:-

13.1. The defendant do pay 75% of the plaintiff’s costs (including all costs reserved) up to 31 January 2024 on a party-and-party basis, to be taxed if not agreed, with a certificate for counsel;

13.2. The defendant do pay 75% of the plaintiff’s costs (including all costs reserved) since 1 February 2024 on indemnity basis, to be taxed if not agreed, with a certificate for counsel; and

13.3. The defendant do pay interest on the damages at 1% above HSBC prime rate, from the date of the service to the Writ to 31 January 2024; and at 4% above judgment rate thereafter until full payment of the damages.

14.  The plaintiff asks for costs of this application, but a statement of costs has not been included with the written submissions. In such circumstances, I shall exercise my discretion to summarily assess the plaintiff’s costs of this application at $15,000.00.