XCHRX TOP BOND INDUSTRIES LTD. v. WONG NGAN KWAN t/a PANG TAT PLASTIC CO.

HCA 22056/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 22056 OF 1998

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J U D G M E N T

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1. On 22nd July 1999, I determined an application and made an order for the costs of that application to be to the Plaintiff. The order was sealed on 30th July 1999. I do not propose to go into the reasons for making that order as I have already delivered a written judgment on the matter. However, I indicated to Miss Chan, who appeared before me today, that it was my intention to make the order in such terms, reflecting my views on how the argument had developed and the time taken by the Defendant in persisting in particular arguments. But as I said, I do not wish to go back into that judgment which is there to be read.

2. On 30th August, Messrs. Lau & Chan wrote to the Court explaining that the parties had taken different views as to the effect of the costs order, and submitted that the proper approach in the present case was for costs to be paid after the final disposition of the case. An answer was given by a letter from my clerk where reference was made to the Aktieselskabet Dansk Skibsfinansiering v. Wheelock Marden & Co. Ltd. [1994] 1 HKC 607 which explains the effect in Hong Kong of an order for costs to be paid to the Plaintiff without the addition of the words "in any event". The party in whose favour such an order is made is entitled to tax such costs without awaiting the final outcome of the case. The letter pointed this out and that the rules governing the position of United Kingdom may now differ from those which apply in this jurisdiction. The letter continued as follows:

"His Lordship points out that as the order has been perfected, the Court has no jurisdiction to entertain any further submissions on the terms of that order."

3. Notwithstanding this letter, the Defendant has taken out the summons dated 28th September 1999 under the Slip Rule i.e. Order 20 rule 11 and under the inherent jurisdiction seeking an amendment to the order to add the words "in any event".

4. Miss Chan has cited the subsequent decision of Barnett J. in the abovementioned case dated 28th June 1994 where he reviewed his order as to costs and indeed did add the words "in any event" to the order he had previously made. However, an important distinction between that case and the present case is, as appears at page 2 of the judgment, that the orders which the learned judge had originally made were orders nisi. That is not the case before me. Where an order made is an order nisi, the court of course retains jurisdiction to hear further argument on questions of costs. Unfortunately, in the present case, no application was made prior to the perfection of the order when the Court would still have had jurisdiction to entertain the application.

5. So far as the Slip Rule is concerned, it is my view that the present case does not fall within it because the order does not involve any accidental slip or omission. The judgment of the Court of Appeal in Skink Ltd. & The Official Receiver v. Comtowell Limited & Malcolm Basil Maydwell (unreported) [1994] Civ. App. 74 decided on 10th February 1998 was cited by Miss Chan for the proposition that the court has an inherent jurisdiction to vary its own orders so as to carry out its own meaning and to make that meaning plain.

6. I accept that as a principle. However, I do not think that it allows the question to be re-opened at this stage. I therefore dismiss this application with costs to be paid by the Defendant in any event.