LO POK CHUNG v. CHAN TAT KI ROBERT

DCPI 316/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 316 OF 2015

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REASONS FOR RULING

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Introduction

1.  This appeal concerns the application of the admission of monetary claims regime under Order 13A of the Rules of the District Court (“RDC”) that was introduced into the rules of court as part of the Civil Justice Reform.

2.  On 8 April 2015 the defendant filed a Notice of Appeal appealing against the costs order made by Master C H Li on 26 March 2015 upon granting interlocutory judgment on liability against the defendant on his admission of the claim, with damages to be assessed.  The admission was made in the manner prescribed under Order 13A rule 7.  The learned Master ordered costs to be taxed if not agreed, after considering the parties’ written contentions on costs submitted by missives.  However, it is unclear as to the reason why the learned Master decided to grant the order for costs to be taxed instead of awarding scale fees as prescribed in the rules.  No reasons were provided for the exercise of his discretion in departing from the usual practice of awarding scale fees.  Given that the claim herein is a relatively straightforward one involving a traffic accident with only one defendant involved, the defendant argued that there was no unusual feature in this case that justified anything more than scale fees.

3.  As a matter of general principle a judge in chambers will not allow appeals against costs orders made by masters unless the master demonstrably erred in the exercise of his discretion in making the order, that is to say, the order made was unreasonable or was erroneous in law (Hoddle v CCF Construction Ltd [1992] 2 All ER 550 @ 550H-551B per Morland J.[1]). I have not lost sight of this general principle and I am mindful that, although an appeal under Order 58 generally operates by way of a rehearing, when it comes to an appeal against costs orders, which is largely a matter of discretion, I ought not to embark on a review of all the materials and allow an appeal simply because I hold a different opinion as to how the discretion should be exercised.

4.  One recent example of a costs appeal is Pevonia International LLC v Pevonia Asia Ltd, CACV No 235 of 2014, 18 March 2015 where the Court of Appeal undertook an analysis of the possible reasons for the judge below to order that the costs of the winding-up petition be paid out of the assets of the company, rather than ordering that one of the contributories of the company, who unsuccessfully contested the petition, should bear the costs.  The Court of Appeal examined whether the decision of the judge was the result of a deliberate and considered exercise of his judicial discretion.  The judge’s costs order had the effect of allowing the contributory, who opposed the petition, to escape without bearing the costs of his litigation.  On appeal, there was no proper basis found for departing from the normal practice of costs following the event.  The appeal was allowed and it was ordered that the contributory should bear the costs of his contesting the petition.

5.  At the hearing on 14 May 2015, after hearing submissions, I allowed the defendant’s appeal and set aside the costs order made by the learned Master. In substitution of the original costs order, I made an order that the plaintiff be awarded fixed costs in the sum of HK$6,500 in respect of the issue of liability, in accordance with the provisions of Order 13A and Paragraph 2 of Part I under Schedule 2 to Order 62 of the RDC.  I indicated that I would hand down my reasons for the ruling, which I now do.

6.  Before I go into the costs issue, I must first mention a procedural complaint made at the hearing before me by Mr Simon Lam, counsel for the plaintiff. Mr Lam complained that the application to the Registrar for interlocutory judgment to be entered with costs was not made by way of an inter-partes summons.  I do not see this as a specific requirement under Order 13A.  Quite to the contrary, the application for interlocutory judgment was required to be made by filing a request for judgment in Form 16E.  No summons was required, and there was no hearing below.  If Mr Lam’s complaint was about whether I have jurisdiction to determine this appeal, I consider the fact that there was no hearing below does not prevent me from being seized of the appeal, as Order 58 rule 1 provides that an appeal shall lie irrespective of whether the judgment, order or decision below was given or made on the basis of written submissions only or after a hearing.  The court below had had the benefit of written submissions from both sides.  The decision made was judicial in nature as it involved the exercise of the court’s discretion as to costs.  I do not see how Mr Lam could raise any valid objection in the way he submitted.  In any event, Mr Lam did not press this complaint.

Chronology

7.  By the Statement of Claim, the plaintiff claims against the defendant for damages for personal injuries suffered as a result of a traffic accident that took place on 25 October 2013.  The plaintiff’s case is that at about 23:34 on 25 October 2013, the plaintiff was riding on his motorcycle travelling along Lancashire Road in Kowloon.  When he reached the junction of Lancashire Road with La Salle Road, he had a collision with the vehicle driven by the defendant.  As a result of the accident, he suffered multiple injuries that included abrasions over his limbs and shoulders.  The defendant was subsequently convicted of careless driving in respect of the accident.  The plaintiff claims that the accident and his injuries were caused by the defendant’s negligence.  The particulars of negligence alleged against the defendant included the failure by him to exercise caution when he entered the junction, failing to pay heed to the presence of the plaintiff on his motorcycle, driving into the junction when it was unsafe to do so, and driving across the junction in contravention of the traffic sign then showing to him.  By and large, this appears to be a straightforward traffic accident claim involving two road users.

8.  The writ in this action was issued on 11 February 2015.  On 23 February 2015, the Statement of Claim was filed together with the Statement of Damages.  A Notice of Checklist Review was issued upon commencement of the action.  On 24 February 2015, the plaintiff also filed a List of Documents and a Hearsay Notice.

9.  On 9 March 2015, the defendant admitted the claim by filing a Form 16C indicating his admission of liability for the claim whilst offering to pay HK$10,000 in satisfaction thereof.  Form 16C is a prescribed form under Order 13A Rule 7(2) of the RDC required[2] to be attached to a writ when the latter is served on a defendant to allow him to make admission of a claim in the prescribed manner.

10.  On 19 March 2015, the plaintiff filed his reply to the defendant’s admission in Form 16E pursuant to Order 13A Rule 7(3), (9) and (10), stating that he did not accept the amount offered by the defendant in satisfaction of his claim, but requested for judgment to be entered for an amount to be decided by the court.

11.  Following from the filing and service of the prescribed forms, the defendant’s solicitors wrote to the Registrar of the District Court on 20 March 2015 requesting for judgment to be entered pursuant to Order 13A, with fixed costs.  The letter was in the following terms:-

“We act on behalf of the Defendant.

Since Forms 16C and Forms 16E have respectively been filed by the Defendant and the Plaintiff, the Court shall enter judgment against the Defendant pursuant to Order 13A Rule 7(8).

Meanwhile, we will like to make submission that pursuant to paragraph 1A of Part I of the Second Schedule of Order 62 of the RDC, it provides that the scale of costs set out in Part II of the Second Schedule applies in relation to cases in which the plaintiff obtains judgment under Order 13A without a hearing.

By Part II of the said Second Schedule, it provides that the amount of costs that the Plaintiff should be entitled upon judgment being obtained under Order 13A shall be fixed at $6,500 if the Plaintiff is legally represented.

We shall therefore be grateful if you can kindly enter judgment against the Defendant under Order 13A with Plaintiff’s costs on liability be fixed at$6,500…”

12.  The letter was erroneous in two respects.  Firstly, judgment should be entered pursuant to Order 13A Rule 7(9) and (10) instead of Rule 7(8). Rule 7(9) and (10) are in these terms:-

“(9) If the plaintiff does not accept the amount offered by the defendant, he may obtain judgment by filing in the Registry a request in Form No.16E in Appendix A.

(10)      Judgment under paragraph (9) shall be for an amount to be decided by the Court and costs.”

13.  Secondly, the reference to Paragraph 1A of Part I of the Second Schedule to Order 62 should have been to Paragraph 2 instead.  However, I do not believe any damage had flowed from these errors.  There could be no doubt the letter constituted a request for interlocutory judgment to be entered with fixed costs.  It suffices for me to complete the picture by stating, for the sake of clarity, that Paragraph 2 (instead of Paragraph 1A as mentioned in the letter) of Part I of the Second Schedule to Order 62 provides that the scale of costs set out in Part II of the Second Schedule applies in relation to cases in which the plaintiff obtains judgment under Order 13A without a hearing.  If the scale of costs is applied, fixed costs of HK$6,500 should be awarded in this case.

The court’s discretion

14.  Notwithstanding the provisions mentioned above, the court retains a discretion whether to depart from ordering fixed costs.  The discretion is derived from Order 62 rule 32(4) which is pertinent to the award of scale fees:-

“(4) Notwithstanding paragraph (1) [which is the provision relevant to taxation of costs], costs shall, unless the Court otherwise orders, be allowed in the cases to which Schedule 2 to this Order applies in accordance with the provisions of that Schedule.” [underline added]

15.  It thus seems to me the starting point in a case where the provisions of Order 13A applies is that fixed costs shall be awarded, unless the court otherwise orders.  This provides a sense of certainty to the parties, particularly to a defendant, who will know what sort of costs liability he is faced with if he decides to admit a claim.  As Master Levy observed of the equivalent rules in the High Court in Panjabi v Cader [2011] 4 HKLRD 355 at paragraph 26, “the new O.13A regime is designed to facilitate admission so that a defendant is able to know his costs liability with certainty when making the admission.”  Master Roy Yu also echoed the same observations when he considered a situation similar to the present case in Au Fo Kiu v Liu Kwok Kei, HCPI No 417 of 2014, 12 September 2014, a case relied upon by Mr Gidwani, counsel for the defendant.  At paragraphs 18 and 19 of his judgment, Master Yu said:-

“18. To begin with, I agree…that for judgment under Order 13A, a plaintiff should have costs fixed according to the scale, unless directed otherwise by Court under the discretion of Order 62 rule 32(4). Scale costs may create unfairness in some cases. The power under Order 62 Rule 32(4) is a safeguard for justice.

19. I believe the purpose of scale fees is to minimize the plaintiff’s recoverable cost to a reasonable minimum amount fixed by the scale. This could encourage admission by [a] defendant for a speedy resolution of the dispute, who knows with reasonable certainty what he has to pay for costs if he admits liability under Order 13A. I am of the view that the Court should be slow to depart from the scale fees which reflect the legislative intent, and to maintain certainty of costs consequence in litigation.” [underline added]

16.  As I said the situation in Au Fo Kiu v Liu Kwok Kei was very similar to the present case.  There the writ together with the Statement of Claim, Statement of Damages and List of Medical Reports were filed on the same day.  Upon receipt of the writ the defendant, in accordance with Order 13A Rule 7(7) of the Rules of the High Court, filed and served a Form 16C admitting liability offering to pay HK$10,000 in satisfaction of the plaintiff’s claim.  The plaintiff did not accept the amount offered and requested for judgment to be entered for damages to be assessed by filing a Form 16E, enclosing a draft judgment.  The plaintiff asked for costs on liability to be taxed.  The defendant’s solicitors wrote to the court contending that according to Paragraph 1A of Part I of the Second Schedule to Order 62 of the Rules of the High Court, the plaintiff should be entitled to scale fees as set out in Part II of the Second Schedule, being HK$10,000. It was not disputed that the plaintiff should also be entitled to the filing fees as provided under the Second Schedule. There was also no dispute that for judgments entered under Order 13A of the Rules of the High Court, the provisions of Paragraph 1A of Part I of the Second Schedule shall apply.  Paragraph 1A provides that the scale of costs set out in Part II of the Second Schedule applies in relation to cases in which the plaintiff obtains judgment under Order 13A without a hearing.  Paragraph 1A is in exactly the same terms as Paragraph 2 of Part I of the Second Schedule to Order 62 of the RDC.

17.  Master Yu took the view, which I share, that the burden rests on the plaintiff to satisfy the court of any special reasons or exceptional circumstances to order costs to be taxed instead of scale fees.  There is no general guideline on all the circumstances that are exceptional, and the particular facts of each case would determine if additional costs should be allowed[3]. In finding that there must be special reasons or exceptional circumstances before one should depart from the usual order allowing fixed costs, the learned master drew support from the cases of Ever Good Trading Corporation v Cheng Ching Kwok t/a Bonanza Industry Co, Hang Seng Bank Ltd & others [1988] 1 HKLR 307, Cobalt Industrial Co Ltd v Kin Sun Electronics Ltd [1997] 2 HKC 402 and the recent case of Etratech Asia-Pacific Limited v Leader Printed Circuit Boards Ltd [2013] 2 HKLRD 1184.  I shall briefly refer to these cases.

18.  In Ever Good Trading Corporation, a bank successfully opposed an application for a garnishee order absolute to take effect over an account held with them by the judgment debtor, because the credit balance in that account was held as security for a guarantee the bank had given on behalf of the judgment debtor.  Despite having successfully defended the garnishee proceedings in relation to that account, the bank was only awarded fixed costs of HK$100 prescribed in the then prevailing rules.  On the bank’s appeal, it was held that in a majority of garnishee proceedings where a bank is involved it was usually the case that the bank would not play a major part in the proceedings, and as such the prima facie provision for fixed costs in Order 62 rule 32(4) was appropriate and reasonable.  But the bank in that case opposed the application and succeeded in doing so.  It was said that that was the very kind of case where the prima facie entitlement to fixed costs was displaced, and the bank was entitled to have its taxed costs.

19.  Cobalt Industrial Co Ltd was concerned with an Order 14 appeal where the master awarded partial judgment “with costs” without announcing whether that meant fixed costs or taxed costs.  In those days a plaintiff was only entitled to fixed costs upon successfully applying for summary judgment, unless the court ordered otherwise.  On appeal, Godfrey J (as he then was) commented that “it is possible, under Order 14 proceedings, for the master to make an order for costs to be taxed, instead of the usual order for fixed costs, that is a course which the master should and will take only in exceptional circumstances.”

20.  In the recent case of Etratech Asia-Pacific Limited, Poon J considered the prima facie rule that a plaintiff is entitled to his costs of the proceedings up to the date of service notice of acceptance, when a plaintiff accepts a sanctioned payment under Order 22.  The learned judge referred to the discretion to depart from the prima facie rule and stated that the discretion should only be exercised in exceptional circumstances that clearly warrant a different costs order.  Otherwise, the certainty as to costs consequences created by the prima facie rule, being one of the very important features underpinning the effectiveness of sanctioned payments and sanctioned offers, will be greatly diminished[4]. See also Wong Chim Hing v Discovery Bay Transit Services Ltd, HCPI No 254 of 2011, 7 November 2014 at paragraph 16 where Bharwaney J agreed with this approach.

21.  After considering the above authorities, Master Yu was not satisfied in the case before him that there were any special reasons or exceptional circumstances that justified taxed costs.  He applied the scale fees and awarded fixed costs.  In paragraph 35 of his elaborate ruling, he further observed:-

“There is a long established practice in PI cases that, when parties reached agreement for the defendant to admit liability with damages to be assessed, and when interlocutory judgment was entered, only costs on liability would be awarded to the plaintiff. Hence the costs relating to damages and assessment, including the Statement of Damages and medical evidence on quantum would remain as costs in the assessment and to be determined at a later stage. I presume this practice is to take into account the fact that costs on quantum has been incurred at the early stage pursuant to PD 18.1. Since the question of quantum has not been determined, it should not be awarded to the plaintiff with the judgment on liability.”

22.  In paragraphs 29 to 30 of his judgment Master Yu also observed that the scale fee fixed at HK$10,000 (ie the scale applicable in the High Court) must have been intended to cover a specific group of legal work, including the normal work one would expect would be undertaken leading up to the issuance of the writ and statement of claim, namely the taking of instructions and perusal of documents, research and drafting of the writ and statement of claim.  When there had been additional work or unusual expenses incurred that went beyond the usual spectrum, the scale fee may be replaced by an order for taxation.  The learned Master gave one obvious example in personal injuries cases being a claim on medical negligence.  Expert evidence on liability would have been obtained prior to the issuance of the writ, and the cost of employing one medical expert would have easily exceeded HK$10,000.  Limiting the recovery of costs to a scale fee would be unfair to the plaintiff.  In such a case, taxed costs may be ordered.

Analysis of the parties contentions

23.  Against this benchmark I now seek to analyse the parties’ contentions.

24.  The plaintiff’s solicitors wrote to the Registrar on 20 March 2015 inviting the court to enter judgment on liability and to award costs to be taxed if not agreed, instead of fixed costs.  In doing so complaint was made by the plaintiff’s solicitors in the letter as follows:-

“We would invite the court for an order that judgment on liability be entered for the Plaintiff and costs on liability to be taxed (if not agreed) according to Plaintiff’s Form 16E filed in response to Defendant’s Form 16C dated 2015/3/9 for following reasons.

Failing to receive response to the Plaintiff’s settlement negotiation since 2014/9/19 from neither the Defendant nor insurer’s legal representative Messrs. Lau Chan &Ko, the Plaintiff necessarily and reasonably incurred the following works expeditiously following the underlying objectives of the CJR:-

1. On 2015/2/11, the Plaintiff issued the Writ herein;

2. On 2015/2/16, the Plaintiff served the Writ and Checklist Review etc. on Defendant and his insurer;

3. On 2015/2/25, the Plaintiff filed and served on Defendant & Lau Chan & Ko with Statement of Claim, Lists of Documents, Medical Report, Statement of damages

Given the substantial work done that incurred by the Plaintiff’s handling lawyer (Mr. Henry Lam admitted in 1991 at rate of $2,600) to least 15 hours on part of liability issue, we invite the court to order costs order on liability to be taxed if not [agreed].”

25.  It was not entirely correct for the plaintiff’s solicitors to say that they had received no response from the defendant or his insurer in the negotiations since 19 September 2014.  At least this assertion might have created an exaggerated impression that the defendant or his insurer had remained silent from the outset.  The parties have by consent put before me a bundle of the relevant correspondence.  The correspondence shows that the correct chronology of events is that the plaintiff’s solicitors first sent a pre-action letter to the defendant on 8 September 2014. Messrs Lau, Chan & Ko, who acted for the insurer, responded by a letter dated 23 September 2014 requesting for copies of relevant documents.  There then followed a string of correspondence until early 2014 exchanged between the two firms on the supply of copies of relevant documents.  The last of such correspondence was a letter dated 3 November 2014 whereby the plaintiff’s solicitors provided some further documents to Messrs Lau, Chan & Ko, whilst requesting for a constructive response from them within ten days, that is, by 13 November 2014.

26.  On 13 November 2014, the plaintiff’s solicitors wrote to Messrs Lau, Chan & Ko stating that as they had not received any response since their last letter, they enclosed a draft Statement of Claim and Statement of Damages to be issued if they did not hear from them within 7 days.  Messrs Lau, Chan & Ko did not respond to this letter.  On 20 November 2014 the plaintiff’s solicitors wrote a further letter to Messrs Lau, Chan & Ko demanding a response within 10 days, failing which legal action would be commenced without further notice.  No response was forthcoming either, and on 11 February 2015, the writ was issued and served on the defendant.

27.  In reply to the letter dated 20 March 2015 submitted to the Registrar by the plaintiff’s solicitors, the defendant’s solicitors wrote to the Registrar on 23 March 2015 inviting the court to order fixed costs at HK$6,500 instead of taxed costs, relying on the decision of Master Roy Yu in Au Fo Kiu v Liu Kwok Kei referred to above.

28.  At the hearing before me, Mr. Gidwani for the defendant maintained the stance that this is a simple case and there were no exceptional circumstances that justified a departure from the scale fees. Only 14 pages of documents on liability were involved in the pre-action disclosure process by correspondence, and the preparation of the legal documents did not require an unusual amount of extra time on top of what would usually be required.

29.  Mr Lam for the plaintiff, on the other hand, levied criticisms against the lack of response on the question liability from the defendant or his insurer’s solicitors in the pre-action correspondence.  He submitted that the lack of response did not comply with the underlying objectives of Order 1A rule 1 of the RDC to increase the cost-effectiveness of litigation, and to ensure that a case is as expeditiously dealt with as reasonably possible.  He also referred to the requirements set out in the Pre-action Protocol contained in Practice Direction 18.1, in particular paragraphs 19 and 20, that a defendant should provide a constructive reply and provide a positive reaction to the allegations of negligence.  He also referred to paragraph 9 in the introductory parts of the Practice Direction which states that non-compliance with the Practice Direction and the Pre-Action Protocol without good reason may lead to adverse costs consequences and/or sanctions including but not limited to those provided in the rules in relation to wasted costs, and the exercise of the court’s power to stay proceedings.

30.  Mr Lam did not pitch his case as high as that there should be wasted costs sanctions.  He submitted, however, that as a result of the lack of response from the defendant and his insurer, the plaintiff had incurred substantial costs that came up to at least 15 hours of legal work (at the hourly rate of HK$2,600) by a partner of the firm representing the plaintiff.  These costs, he said, were incurred through no fault on the part of the plaintiff.

31.  He further submitted that if there is a real chance that the pre-action legal work required to be done exceeded 2.5 or 3 hours, then the plaintiff’s costs should be taxed.  This is because fixed costs of HK$6,500 according to the scale translated into only 2.5 hours of professional work by the partner of the firm.

32.  First of all, whilst I agree that the conduct of the parties can always be taken into account when the court exercises its discretion as to costs[5], and I have no qualms with the underlying objectives of Order 1A rule 1 and Practice Direction 18.1, the paramount consideration in the present case remained to be whether there are exceptional circumstances that justify a departure from the normal order for fixed costs.  The defendant has not explained the lack of response and I make no conjecture as to the reason why no response was given by Messrs Lau, Chan & Ko to the plaintiff’s solicitors after 3 November 2014.  At any rate it was certainly not the case that the defendant or his insurer had never responded to the plaintiff.  As described above, Messrs Lau, Chan & Ko did proceed to seek early disclosure of relevant documents, and there had been exchanges between them and the plaintiff’s solicitors in that regard.  It also seems to me that the defendant was perfectly entitled to, and did, make use of the admission regime under Order 13A once the proceedings were commenced.  The defendant admitted liability on the claim at the early stage of the proceedings within the time prescribed under the rules. No defence was filed and the plaintiff was not required to deal with issues of liability on the pleadings.

33.  More importantly, on the facts of the present case, even given the lack of pre-action response on the question of liability, I do not see how the plaintiff’s costs position had been made worse.  The plaintiff’s solicitors had already proffered the draft Statement of Claim and Statement of Damages to Messrs Lau, Chan & Ko on 13 November 2014.  As such it appears that the legal costs for drafting those documents had already been incurred at that relatively early stage.  

34.  Further, whilst the plaintiff maintains that at least 15 hours of professional work had been undertaken prior to the commencement of proceedings, the court had not been supplied with even a general description or breakdown of items of work that went beyond the usual spectrum intended to be covered by the fixed costs. As mentioned above, the usual spectrum includes the taking of instructions, perusal of documents, research and drafting of the writ and statement of claim.  As I have mentioned at the outset, this is a rather straightforward traffic accident claim.

35.  It is true a List of Documents (consisting of 22 documents, some of which were related to quantum) and Hearsay Notice had been prepared and filed as well, but these would not have accounted for substantial amounts of additional costs.  Further, Mr Lam does not dispute that the costs incurred for preparing documents relating to quantum, including the Statement of Damages, and the medical reports, are not to be considered in the exercise.

36.  The upshot is that there is nothing to suggest the plaintiff would be unfairly disadvantaged in terms that there had been any substantial extra costs incurred on top of the normal items intended to be covered by the scale fee.  As the burden rests with the plaintiff to satisfy the court of special reasons or exceptional circumstances that justify taxed costs instead of scale fees, it is insufficient for the plaintiff to put forward a bare assertion, both before the learned Master and before me at the hearing, maintaining that at least 15 hours of legal work on liability had been undertaken.  At the hearing I asked Mr Lam as to whether he could let me have at least a general breakdown of the costs incurred reflecting the nature of the 15 hours or more of professional work prior to the commencement of the action, but he was not in a position to do so.  The best he could do was to fall back on the assertion itself, and to further submit that if there was a real chance the amount of time involved exceeded 2.5 or 3 hours, taxed costs should be ordered.  I cannot accept that submission without substantiation.  The burden rests on the plaintiff to show exceptional circumstances for departing from the prima facie entitlement to fixed costs. I consider that the plaintiff has failed to overcome that burden.

Ruling

37.  There was no proper basis for the learned Master to depart from the normal practice of ordering fixed costs.  For the reasons set out above, I allowed the appeal and ordered that the plaintiff be entitled to fixed costs of HK$6,500 in respect of the issue of liability, in accordance with the provisions of Order 13A and Paragraph 2 of Part I under the Second Schedule to Order 62 of the RDC.

38.  For the avoidance of any doubt, since I ordered that fixed costs be awarded according to the scale fees set out in the Second Schedule, the effect of my order is that, by operation of Paragraph 4 in Part I of the Second Schedule to Order 62, there shall be added to the basic costs the fee which would have been payable on the issue of the writ.

39.  Mr Lam asked me to make no order as to the costs of the appeal, as Master Roy Yu did at the hearing before him in Au Fo Kiu.  I disagreed with Mr Lam’s suggestion.  The issue was no longer novel in this case as in Au Fo Kiu, and the plaintiff had already been alerted to the decision in Au Fo Kiu when the application was made to the Registrar in March 2015.  There is no reason why costs should not follow the event at this appeal.  As a result, I ordered that the plaintiff shall pay the costs of the appeal, which I summarily assessed at the hearing.

40.  Lastly, I thank counsel for their assistance.

[1] See also: China Venturetechno International Co. Ltd. v. New Century Chain Development Co. Ltd. [1996] 2 HKLR 18; Hong Kong Civil Procedure 2015, Vol.1, para.58/1/6.

[2] Under Order 13A rule 13(2)(b).

[3] See paragraph 27 of his judgment.

[4] See paragraph 20 of the judgment of Poon J.

[5] Order 64 rule 5(1)(e).