IP FUNG KUEN v. SAM KEE FROZEN MEAT CO LTD AND OTHERS

HCA 1897/2009

[2019] HKCFI 429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1897 OF 2009

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D E C I S I O N
(On variation of costs order nisi)

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Introduction

1. The Judgment in this case was handed down by this Court on 6 April 2016, almost 3 years ago, after a 15 day trial.  As seen in the Judgment, the case concerned 3 claims, namely (i) the Debt Claim; (ii) the Property Claim; (iii) the Employment Claim.  I shall follow the definitions in the Judgment, unless otherwise indicated herein.

2. On costs, I held that although P did not succeed with the Debt Claim, that the claim was connected with the Property Claim which was the main subject of the litigation, and that I had accepted P’s case on the 8 Loan Cheques.  I was of the view that P was the overall successful party and I ordered that (a) Ds to bear her costs in the main action jointly and severally and (b) D1 and D2 to bear P’s costs in the counterclaim jointly and severally, including all costs reserved, and P’s costs be taxed in accordance with the Legal Aid Regulations (“Order Nisi”).

3. On 25 April 2016, Ds issued a summons to vary the Order Nisi to :

(a) Ds to bear 65% of P’s costs in the main action jointly and severally;

(b) D1 and D2 do bear P’s costs in the counterclaim jointly and severally including all costs reserved.

4. As Ds had lodged an appeal against this Court’s decision, the hearing for the variation of the Order Nisi was later adjourned and as said earlier, it took some 3 years before the matter came back to this Court.

Ds’ grounds for variation

5. So far as the costs on the Property Claim and the Employment Claim were concerned, Ds accepted that the costs should follow the event.  However, on the Debt Claim, Mr Cheung submitted that as P had failed in this claim, Ds ought to be granted costs in relation thereto, and that the time and resources spent on the Debt Claim were not insignificant.

Discussion 

6. The Debt Claim was only for an amount of HK$350,000.  P had produced 8 Loan Cheques totalling HK$1,030,000 as evidence of the Loans she advanced to D3 and it was her case that after setting off the balance of the initial funds for the purchase of the Happy Valley Property, D3 had duly acknowledged and agreed to repay P the sum of HK$350,000, being balance of the Loans owing to P.

7. It was clear from the Judgment that I rejected D3’s evidence that the 8 Loan Cheques were either used as receipts or were conditional gifts.  As said in paragraph 223, I rejected Ds’ case on why the 8 Loan Cheques were issued to P and I accepted P’s evidence that the 8 Loan Cheques represented the Loans advanced by P to D3 and that as at the date of the 8^th Cheque, the amount owing to P was HK$1,030,000.  I further accepted that even after payment for the purchase of the Happy Valley Property, there was still an amount outstanding due to P from any or all of the Ds, and it was only in relation to the actual outstanding amount of the Loans that I found P’s evidence was confusing and I do not find that there was sufficient evidence that D3 had agreed or acknowledged during the Family Meeting that the outstanding amount of the Loans was HK$350,000.

8. A considerable amount of the time in relation to the Debt Claim was spent over Ds’ case/D3’s evidence on the 8 Loan Cheques.  Mr Cheung argued that P’s case could have been put forward as background information.  However, I accept Mr Lo’s submission that P’s case on the Loans was integral to the Property Claim since it formed the background to the Acquisition Proposal.  This can be seen in paragraph 236 (iv), and also paragraphs 237 and 238 of the Judgment.  Also, D1 had also made use of the Debt Claim in its counterclaim against P for alleged outstanding liabilities and D1 had failed.

Conclusion

9. Costs are in the unfettered discretion of the Court.  The time spent on cross examining P on the Debt Claim was less than 3 hours.  As pointed out by Mr Lo, any additional time spent on dealing with the quantum of the Debt Claim was nominal in the context of this marathon litigation and the findings I made against Ds.

10. Having considered the circumstances of this case, I see no grounds in varying the Order Nisi.

11. I therefore dismiss Ds’ summons issued on 25 April 2016 and order Ds to bear P’s costs of this variation application jointly and severally and P’s own costs to be taxed in accordance with Legal Aid Regulations.