WELLEGANT DEVELOPMENT LTD. v. FINE TELECOM LTD. AND OTHERS

HCA 2132/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2132 OF 2001

____________________

____________________

____________________

D E C I S I O N

____________________

1.  This is one of the cases in which I try to decide an interlocutory application without a hearing.  The intention is to deal with the application expeditious without waiting for a hearing date.  The parties have agreed to such procedure being adopted.  The decision is intended to be concise.  The following is my decision.

2. In paragraphs 1 and 2 of the Plaintiff’s written submission, I do not see the distinction between the enquiry as to damages and assessment of damages is relevant to the issue before me: whether High Court or District Court scale of cost should be applied to the taxation of the bill filed by the Plaintiff on 1 December 2005.

3. I do not find any of the authorities submitted supporting the proposition of the plaintiff in paragraph 3: “By effecting payment into court, the defendants were deemed to have accepted the jurisdiction of the High Court which made the cost order.”

4. It is not my view that Section 134 of the Copyright Ordinance (Cap. 528) intends to limit the general jurisdiction of the District Court.  I find the District Court has power to deal with additional damages under Section 108.

5. I accept the general principle as set out in paragraph 21 of Seagroatt J’s decision in the case of Lai Ki v B+B Construction Co. Ltd [2003] 3 HKC 329 is:

“21.     The position in relation to a claim in the High Court settled or adjudicated upon in a sum which is within the District Court jurisdiction is as follows:

(1)           The usual order will mean that costs will be on the District Court scale unless the High Court is, in the exercise of its discretion, persuaded that there was a reasonable prospect of obtaining an award in excess of the District Court jurisdiction ……”

6. Further, the plaintiff must “apply promptly by way of summons to a master for a determination as to costs” (paragraph 22(1)).  The plaintiff accepted the payment in on 29 August 2005.  It did not apply for determination until after the defendant raised it in the List of Objections filed on 19 January 2006.

7. I have taken into consideration the subject matter, the value of the product and the extent of infringement.  I have also considered the plaintiff’s argument about the audit by forensic accountant, the way the defendant conducted the case, the plaintiff’s commercial reason for settling and the lack of Calder bank offer.  I am not convinced that there was a reasonable prospect of obtaining an award in excess of the District Court jurisdiction i.e. $600,000 at the time of the commencement of the proceedings or any other time.

8. I rule that the costs for taxation of the bill filed by the plaintiff should be assessed in accordance with the District Court scale.

9. As to costs of this application, I make an order nisi under Order 42 rule 5B(6):

(a)       That the costs be to the defendant to be assessed by me at the hearing of the taxation of the bill filed by the plaintiff on 1 December 2005 with the following directions:

(i)                That the defendant shall at least 14 days before the hearing file and serve a Statement of Costs in the form as suggested by me to the Law Society contained in Circular No. 06-2; and

(ii)              That the plaintiff shall within 7 days thereafter file and serve a list of objections.

(b)       That this order shall become absolute 14 days after the date of this decision unless a written application has been made to vary this order within the said 14 days.

10. I direct the taxation of the bill be fixed for hearing with 3 hours reserved in consultation with the parties’ diaries with liberty to apply.