WEALTHY GLOBAL HOLDINGS LTD v. CELEBRITY CREDIT LTD

DCCJ 2148/2023

[2025] HKDC 1119

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2148 OF 2023

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BETWEEN

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DECISION

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Introduction

1.  On 7 February 2025, this Court handed down the Judgment in this action after trial that took place for 3 days, in which I indicated that costs should follow the event, and made a costs order that the Defendant shall pay the costs of Plaintiff in this action, to be taxed if not agreed (“the Costs Order”).

2.  By way of a Summons dated 21 February 2025 (“the Summons”), the Plaintiff seeks a variation of the Costs Order to obtain a Certificate for Counsel. Thereafter, directions were made for the lodging of written submissions on both sides and for the application to be dealt with by way of paper disposal. The Plaintiff filed its written submissions on 5 June 2025. The Defendant has not filed any written submissions in response.

Applicable legal principles

3.  Order 42, rule 5B(3) of The Rules of the District Court, Cap 336H provides that:

“Where a written judgment is handed down pursuant to this rule the Court may make therein an order nisi as to costs and, unless an application has been made to vary that order, that order shall become absolute 14 days after the decision is pronounced.”

4.  Order 42, rule 5B permits the court to reserve and hand down judgment at a later date. In doing so, it will usually have adjudicated its decision without hearing the parties on costs. Having given its decision, the court will usually order that costs follow the event, but allow the parties 14 days in which to make application for some alternative order if appropriate. The purpose of a costs order nisi is to enable a party who is dissatisfied with that order to make submissions to the court on the appropriate order of costs; a party who does not do so within 14 days cannot appeal against the costs order on the ground that the judge gave no explanation for it. Under this rule, the court has a discretion, but is not bound, to make a costs order nisi (see Hong Kong Civil Procedure 2025 (Vol 1), para 42/5B/1).

5.  Without more, a costs order is prima facie an order absolute and may only be challenged by way of an appeal but not an application to vary. Exceptions to this general position include an indication by the court expressly or by necessary implication at the time of making the order that it is provisional only. Obviously, where a costs order is made further to written submissions on the issue of costs and the opposing party had been invited to respond on the costs application at a hearing, there is no basis to regard the order as an order nisi.

6.  Further, in Kung Kwok Wai David v Commissioner of Estate Duty [2022] 1 HKLRD 965 at §7, Chow J (as he then was) said:

“...A costs order, like any order of the court, is prima facie an order absolute, and may only be challenged by way of an appeal but not an application to vary. There are of course exceptions to this general position, eg an ex parte order, or where the court indicates (either expressly or by necessary implication) at the time of the making of the order that it is provisional only. There may be other exceptions, but they are exceptions to the general rule. In my view, a simple order as to costs made by the court, without more, should be regarded as an order absolute, and not an order nisi.”

7.  The above position was endorsed by the Court of Appeal as correct in Ghazi Faidi v Qantex Capital Markets Ltd and Others, [2025] HKCA 342 at para 6.

Discussion

8.  While this Court did not expressly state that the Costs Order is an order nisi, the Plaintiff submits, which I accept, that it should be considered as such by necessary implication, for the reasons that (i) the Judgment was reserved and handed down after the trial, and (ii) the parties did not make submissions on costs. I would add that it is also very much a frequent practice of this Court that a costs order to be made in a judgment reserved to be handed down would be a costs order nisi. This is so particularly in the circumstances of this case, as the parties had been arguing on various issues, including that of a set-off, which may likely have a bearing on the eventual costs order to be made.

9.  On the basis that the Costs Order is an order nisi, the Plaintiff has properly taken out an application to vary it by way of summons within 14 days. I agree with the Plaintiff that the attendance of Counsel was proper and necessary in the circumstances of this case. The Plaintiff has been represented by Counsel since the issuance of the Writ of Summons, and at the trial, both parties were represented by Counsel. Legal submissions on various issues were provided by the parties at trial to assist the Court. There can be little dispute that there should be Certificate for Counsel.

Conclusion

10.  For the above reasons, I am satisfied that the Costs Order made in this particular case is a costs order nisi by necessary implication. I allow the Plaintiff’s application, and grant an order in terms of the Summons with costs against the Defendant, with Certificate for Counsel.

11.  In any event, alternatively, since the Judgment has not yet been sealed, I would also exercise my discretion and power on my own motion (see Re Harrison’s Shares under a Settlement Agreement [1955] Ch. 260) to review the Costs Order and amend it as aforesaid to include a Certificate for Counsel.