CHAN WING NGA AND ANOTHER v. CHUNG CHI WAI AND ANOTHER

DCCJ 5656/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5656 OF 2005

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Judgment

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1.  This is the Defendant’s application to vary the costs order nisi I made in my judgment dated 4 August 2006 (“the Judgment”), where I gave summary judgment and interlocutory judgment with damages to be assessed in favour of the Plaintiffs.   The order nisi I made was that costs of the summary judgment application be to the Plaintiffs, to be taxed if not agreed.

2.  The Plaintiffs’ solicitors did not turn up at this hearing.  After waiting for an hour and after inquiries having been made by the Defendant’s solicitor, Mr. Tam, and the Court, I was given to understand that, according to the secretary to Mr. Jim (the solicitor who appeared on behalf of the Plaintiffs at the previous hearings), Mr. Jim’s diary was marked with today’s hearing.  Mr. Tam also informed me that he had sent his skeleton and copies of authorities to the Plaintiffs’ solicitors’ office by DX the day before this hearing.

3.  In light of the above, I was satisfied that the Plaintiffs’ solicitors were aware of today’s hearing.  I thus proceeded to hear the Defendant’s application in the absence of the Plaintiffs’ solicitors. 

4.  As a matter of record, up to the date of this judgment, Mr. Jim has not provided to the Court any explanation in writing or otherwise as to why he did not attend the hearing.  The Court reserves its position in following up this matter further.  

The application to vary the cost order nisi

5.  The Defendant seeks to vary the costs order nisi to the extent that only 1/5 of the costs of the summary judgment application should be awarded to the Plaintiffs.   In support of the application, Mr. Tam submitted that, given that the Court only ruled in favour of the Plaintiffs in 1 out of the 5 requisitions relied on by the Plaintiffs for her summary judgment application, and that much time was spent on submissions related to those 4 other requisitions, it was only just and fair for the Court to exercise its discretion to order 1/5 of the costs of the summary judgment application be to the Plaintiffs.

6.  The Court has a wide discretion to determine by whom and to what extent the costs are to be paid which it thinks is just and fair in all the circumstances of the matter before it.  In the exercise of its discretion, the Court is entitled to look at the overall merits of the application instead of adopting an arithmetic dissection as to the number of successful submissions against unsuccessful submissions:  Lee Chan & Cheng v Yung Mei Chun (unrep., HCA 4594/2002, 21 January 2004, Deputy High Court Judge To) at paragraphs 3-9.

7.  After reflecting on my reasoning set out in the Judgment, I agree with Mr. Tam that the Plaintiffs should not to have pursued the summary judgment application based on the Colour Copy Requisition and the Right of Way Requisition (as defined in the Judgment), and that time and costs could then have been saved if the Court and the parties were not required to deal with these issues.   

8.  I am therefore persuaded by Mr. Tam that it would not be just to ask the Defendant to bear all the costs of the summary judgment application.

9.  After reviewing my records of the submissions made by the parties, I have come to the conclusion it is just and fair that the Defendant should only be asked to bear half of the costs of the summary judgment application.  

10.  I therefore vary the cost order nisi to the extent that the Plaintiffs are entitled to half of the costs of the Plaintiffs’ application for summary judgment, to be taxed if not agreed. 

11.  As the Defendant succeeds in the present application to vary the costs order nisi, I further order that the costs of this application be to the Defendant, to be taxed if not agreed.