MAK PUI KI v. HO WING HA

HCMP 898/2020

[2020] HKCFI 3027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 898 OF 2020

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DECISION

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1.  The subject matter before the court is a summons taken out by V on 4^th November 2020 (“the summons”), by which V is seeking an order to vary the costs order nisi made by me in the judgment handed down on 22 October 2020 (“the Judgment”). In the Judgment, I allowed P’s claim and ruled in favour of P and against V. I made a costs order nisi that 70% of the costs of these proceedings (including all costs reserved) be paid by V to P, to be taxed if not agreed. V is now seeking to vary the costs order nisi so that the costs payable by V to P would be taxed on the District Court scale and not on the High Court scale. This decision should be read together with the Judgment. For ease of reference, the abbreviations used in the Judgment are adopted herein.

2.  I have directed that the summons be determined on paper without an oral hearing.  The parties have provided me their respective written submissions, and I have considered the same. 

3.  By now, it is clear that there has been no without prejudice communication between the parties before the handing down of the Judgment which may have an impact on costs.

4.  Whether this case should be heard in the District Court and not in the High Court is a matter raised by this court in the direction hearing before me on 25 September 2020.  In that hearing, I asked the parties to try to agree on the rateable value of the Property at the time of the commencement of these proceedings, and to provide me submissions on whether the costs of these proceedings should be taxed or assessed in accordance with the District Court scale and not on the High Court scale.

5.  The parties agreed that the rateable value of the Property is HK$87,720.  I would proceed on the basis that the rateable value of the Property was more or less the same at the commencement of these proceedings[1].

6.  V submits that:

(1)     V is of the view that the District Court does not have jurisdiction to adjudicate the dispute between P and V in these proceedings, as ss.35 to 37 of the District Court Ordinance (“DCO”) are not applicable[2].

(2)     The application in these proceedings was taken out under CPO s.12.  In that section, the court should be the Court of First Instance unless the vendor and purchaser submit to the jurisdiction of the District Court.

(3)     P did not consult V as to whether proceedings under CPO s.12 should be initiated before the commencement of these proceedings.  There is no agreement between the parties to submit this case to the District Court.

(4)     It was P who chose to commence these proceedings in the Court of First Instance and to push this case to be determined as soon as possible.  V could only have a passive role.  Even if V asked for the case to be transferred to the District Court, P would not have agreed to the same.  Any transfer application would only add costs and cause delay.

(5)     V’s stance is that if V succeeds in these proceedings, costs should be awarded to V on the High Court scale. However, if V fails, V should be ordered to pay costs only on the District Court scale, “as [V] should not be penalized for the unilateral action of P”[3].

7.  P submits that:

(1)     P has the statutory right to make an application pursuant to CPO s.12 to seek a determination from the court on the dispute between P and V.  As provided in the statute, the court in that section is the Court of First Instance, unless the parties submit to the jurisdiction of the District Court.  P should not be penalized simply because she was insisting on her statutory right.

(2)     The severance issue in this case is a point of law of great and general public importance, and hence it would be appropriate to seek a determination from the Court of First Instance on the point.

(3)     V has never invited P to have the case transferred to the District Court.  V cannot now complain on the scale of costs awarded.

8.  Having considered the matter, I am of the following view:

(1)     While V has taken the view that the District Court does not have jurisdiction to hear and determine this case, V in fact cannot have any reason to object that costs of these proceedings should be taxed or assessed on the High Court scale.  If V’s view is correct, this case can only be heard and determined in the Court of First Instance.

(2)     In my judgment, the dispute herein is within the jurisdiction of the District Court.  In Ng Cho Chu Judy v Chan Wing Hung[4], the Court of Appeal has clearly stated that DCO s.36 is a jurisdiction-conferring section, and by virtue of which the District Court has jurisdiction to hear “pure” title cases.  In my view, this case is a “pure” title case, which may be heard and determined by the District Court under DCO s.36[5].

(3)     P has the right to seek a determination on the dispute from the Court of First Instance by making an application under CPO s.12. However, that does not mean that the Court of First Instance must award costs to P on the High Court scale.  After all, costs are at the discretion of the court.  In considering how to exercise the discretion, the court has to take all the relevant circumstances into account.

(4)     I agree that the severance issue is a point of law with some complexity and is a point warranted to be considered by the Court of First Instance.

(5)     As pointed out by P, V has never suggested to P that this case should be transferred to the District Court.  In fact, before the handing down of the Judgment, V was arguing that she should get High Court costs if she was the successful party in these proceedings.

9.  By reason of the severance issue in these proceedings, I am satisfied that it would be appropriate to have this case being heard and determined in the Court of First Instance.  In my judgment, V has not raised any valid objection to awarding costs to P on the High Court scale.  As a result, I would exercise my discretion to make absolute the costs order nisi.

10.  I dismiss the summons, and the costs order nisi now become absolute.

11.  Costs of the summons should follow the event.  P does not seek a certificate for 2 counsel.  There be an order that costs of the summons be paid by V to P forthwith, to be taxed if not agreed.

12.  I thank counsel for the assistance provided to the court.