WEI XING v. WILLWIN DEVELOPMENT (ASIA) CO LTD

HCMP 1922/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1922 OF 2016

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DECISION ON COSTS

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1.  In §28 of my judgment dated 13 April 2017, I made a costs order nisi that the 2^nd respondent (“Wen”) do pay the applicant (“Xing”) two‑thirds of the costs of the application. Wen has applied by summons to vary the order nisi.

2.  The first basis for Wen’s application is that a Calderbank letter dated 16 February 2017 had been issued to Xing.

3.  On behalf of Xing, Mr Ho submits that the Calderbank letter cannot be looked at because O 62 r 5(1)(d) precludes it.  However, as the offer was made less than 28 days before the hearing of the Originating Summons on 1 March 2017 and no submissions have been made on the interaction between O 62 r 5(1)(d) and O 22 r 5(8), I would not rest my decision on this ground.

4.  In any event, having considered it, I do not think the order should be varied because of the offer.  Xing actually did better under my judgment than the offer, in terms of the scope of the documents, the period of time the documents relate to, and particularly costs.  Secondly, the offer was made very late in the day: it was sent to Xing’s solicitors on 17 February 2017, when the originating summons had been issued in July 2016 and was to be heard on 1 March 2017.  As it turned out, Xing did narrow down his request in his counsel’s skeleton argument to the 3 categories of documents mentioned in §6 of my judgment.  There was no further Calderbank proposal from Wen.  Thirdly, the offer was sent on a Friday (17 February) but imposed a deadline for response of 21 February 2017 (Tuesday), with just 2 working days for Xing (who was not in Hong Kong) to consider.

5.  As the second basis for seeking a variation, Mr Leung submits on behalf of Wen that there was no justification for making Wen a party or for ordering costs against him.  I agree with Mr Ho that this argument is no longer open to Wen.  The issue was debated at the substantive hearing on 1 March 2017 (and in the skeleton arguments for that hearing).  In my judgment I gave reasons at §27 dealing with those arguments and disposing of the issue.  In §28, I actually concluded there was basis for ordering Wen to pay costs. It was on the quantum of costs awarded that I expressed my view on a provisional basis.  Even if I am technically not functus officio in relation to the question, I see no special reason why it should be re‑opened.

6.  Accordingly Wen’s application must be dismissed, with costs to Xing on a nisi basis (with a certificate for counsel insofar as necessary).

7.  I also direct that the sum of $350,000 previously paid by Xing into court as security for Wen’s and the Company’s costs be released and paid out to Xing.  Although he was ordered to pay the costs of the application for security, the costs order in his favour in the originating summons is likely to be sufficient to meet them.  Any other debts that may exist are not a ground for withholding the sum from Xing which was paid into court only as security for the costs of these proceedings.