XCHRX KAILAY ENGINEERING CO. (HK) LTD. v. SILVER FAITH HOLDINGS LTD. AND OTHERS

1998, No. CON14

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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JUDGMENT

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1. On 24 November, 1998, I handed down a judgment following an application to vary an order nisi as to costs that I had made on 29 July 1998. That earlier order had been -

"The matter of costs has not been argued. It seems to me, however, that, without argument, the proper order is that the first defendant pay the costs of the applications under the summonses dated 20 and 27 February 1998 on an unopposed basis, and that the plaintiff pay the costs of the opposition. I make an order nisi in these terms."

2. In my judgment of 24 November 1998, I said this -

"In the result, I believe the order nisi made on the summons of 20 February 1998 should stand , subject to this clarification: The plaintiff is to have its costs up to the point of considering and taking instructions on the first defendant's evidence; thereafter, the plaintiff is to pay the first defendant's costs, both in any event."

3. I also made an order by consent as to the costs of another summons. I said this - "Sensibly, the parties have agreed that there should be no order for costs on the summons of 27 February 1998, and I order accordingly."

4. As to the costs of the application to vary the order nisi, I said -

"As to the costs of this application, it seems to me that they should follow the event. I make an order nisi that the plaintiff pay the costs of this application."

5. Mr Shaw now appears to argue that this order nisi should be varied because "the event" was a success for the plaintiff in that it gained a more favourable costs order in relation to the summons of 27 February 1998. Mr Shaw asks, in the alternative, that the words "in any event" be added to the last-mentioned order.

6. I do not agree that the plaintiff should have its costs. I am concerned with substantial success in the application, not just any success. There can be no doubt that the plaintiff failed in persuading me to change the substance of my order of 29 July 1998, and this was the main issue between the parties. Accordingly, the plaintiff's main submission fails. I do agree , however, that my order should be varied to include the words "in any event". I so order.

7. The first defendant also has an application before me. This relates to an order I made in the plaintiff's favour on 12 May 1998. This order did not include the words "in any event". The first defendant now asks me to add these words. This is a final order, and I cannot change it now unless this could be justified under the "slip" rule. As I understand this rule, it allows me to correct a slip only if this would bring the judgment or order into line with my intention at the time. I cannot say that I had the intention to order that costs be "in any event", although, if I had thought about it, it may well be that I would have so ordered. In any event, a long time has passed since the order, and the first defendant did not, until seven months later, do anything about this. In the meantime, the plaintiff has proceeded, without objection by the first defendant, to draw up a bill of costs and arrange for this to be taxed. It seems to me that it would now be inappropriate to change an order upon which the plaintiff has acted, without protest from the first defendant. Accordingly, even if I had thought that I had jurisdiction to alter my order, I would not have done so as a matter of discretion. There is no real prejudice to the first defendant. It has to pay these costs sooner or later.

8. As to the costs of these applications, it believe that both parties have been substantially unsuccessful. Accordingly, I make orders nisi that the plaintiff pay the first defendant's costs of the plaintiff's application, and that the first defendant pay the plaintiff's costs of first defendant's application.

9. The parties are agreed that my order of 29 July 1998 be amended to provide that -

The plaintiff is to have its costs (including any reserved costs) up to the point of considering and taking instructions on the first defendant's evidence; thereafter, the plaintiff is to pay the first defendant's costs (including any reserved costs), both in any event."

10. I so order.