KONINKLIJKE PHILIPS ELECTRONICS N.V. v. ORIENT POWER HOLDINGS LTD AND OTHERS

HCA 945/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 945 OF 2006

____________

____________

_____________

D E C I S I O N

_____________

1.  This is an application by the plaintiff to vary my costs order nisi made at the end of a striking-out exercise.  

2.  The application to strike out was made by all the defendants save the 13th defendant which had not been served with the writ of summons and the 18th, 19th and 20th defendants which were nominal defendants.  At the conclusion of the exercise, I struck out all the claims as made against the 2nd, 12th and 13th defendants and dismissed the action as against them.  I also struck out various parts of the statement of claim regarding the other defendants save the 18th, 19th and 20th defendants.  I also made an order nisi on costs.

3.  The costs order nisi has two parts.  The first part required the plaintiff to pay the 3rd and 12th defendants their costs of the action including their applications to strike out, to disallow amendments and for further and better particulars.  The second part required the plaintiff to pay the other defendants save the 3rd, the 12th, the 13th, the 18th, the 19th and the 20th defendants (“the other defendants”) 30% of the costs of their applications to strike out because I then took the view that these defendants had not succeeded much in their applications. 

4.  The plaintiff now applies to have the second part of the order nisi varied to no order as to costs.  The plaintiff says that the other defendants have succeeded in about 35% of their application.  In other words, the plaintiff has succeeded in 65% of their opposition.  Hence, there should be no order as to costs.

5.  The other defendants argue that they have achieved some success and the order nisi should be maintained.  (When I now refer to the other defendants, I do not think I can include the 1st defendant because I am told that it has been in receivership since sometime in last year and has not given any instructions on this matter.)

6.  If the applications to strike out should have focused only on the parts which were eventually struck out, then the other defendants should have all the costs of their applications.  On the other hand, if the applications should have focused on just those parts which were not struck out, then they would have to bear all the costs of their applications.

7.  What was achieved at the end of the striking-out exercise was something in the middle and I think, in all fairness, no order as to costs would achieve a fairer result for all concerned.  I therefore vary the second part of my costs order nisi to no order as to costs.

Discussion re costs

8.  Mr Kerr asks me to make no order as to costs for today as well and I suppose that would include the application to vary the costs order nisi.  Mr Gopaoco and Mr Yeung have not said anything further and appear to take the same position.  Mr Kerr submits that the other defendants have not taken an aggressive role in this application and they are merely taking a passive role in trying their best to uphold my previous order which did not appear to them to be plainly wrong.  Hence, he suggested that there should be no order as to costs for the application to vary the costs order nisi.

9.  I cannot subscribe to that view because the plaintiff’s application has been taken out for months and my error in the costs order nisi was obvious.  It has been open to the defendants to settle with the plaintiff on this application.  Since they have chosen to contest the application, whether on an aggressive mode or otherwise, they have to abide by the usual consequence, that is to pay the costs of the application.  I do not see anything unusual in this application which would warrant a deviation.  I order the other defendants to pay the plaintiff costs of the application to vary the costs order nisi.