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HCA 954/2020
& HCA 955/2020
[2022] HKCFI 3357
HCA 954/2020
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 954 OF 2020
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BETWEEN
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WHARF REALTY LIMITED |
Plaintiff |
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and
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ABEBI LIMITED trading as “ARMANI JUNIOR” |
Defendant |
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HCA 955/2020
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 955 OF 2020
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BETWEEN
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WHARF REALTY LIMITED |
Plaintiff |
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and
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AGB LEGEND LIMITED trading as “ABEBI” |
Defendant |
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Before: Deputy High Court Judge Winnie Tsui in Chambers
Date of Written Submissions: 29 July 2022
Date of Decision: 27 October 2022
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D E C I S I O N
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My ruling
1. In each action, I allow the defendant’s application made on 29 July 2022 to vary the costs order nisi which I made in para 164 of the decision at [2022] HKCFI 2036. I order that the costs order be varied by replacing the words “on a solicitor and own client basis” with the words “on a party and party basis” and the remainder of the order be made absolute.
2. My reasons are as follows. I shall adopt below the terms defined in the decision.
The costs order nisi
3. In the statement of claim and the summons for summary judgment and striking out in each action, the plaintiff sought costs against the defendant on an indemnity basis. See para 14(h) of the statement of claim and para (a) of the summons. However, in its skeleton submissions lodged for the substantive hearing, the plaintiff asked for costs in accordance with Section VIII, clause 6 of the Tenancy Agreements. The clause expressly provided for costs on a solicitor and own client basis. See para 46.2 of the skeleton submissions.
4. At the hearing, the defendants made no submission on the basis of taxation of costs. Nor did they comment on the solicitor and own client basis which the plaintiff sought in its skeleton submissions.
5. The costs order nisi was made in light of these circumstances.
Proper basis of taxation
6. Having read the defendants’ submissions in the present application, I agree with them that while the court has power to order taxation of inter partes costs on a solicitor and own client basis (ie as between litigating parties as opposed to as between a solicitor and his client), generally speaking, it would not be appropriate for the court to exercise such power: EMI Records v Ian Cameron Wallace Ltd [1983] Ch 59 at 74A-D, 74H-75B; Hong Kong Civil Procedure 2022 at 62/App/10. If indeed there are circumstances which justify such an order, these ought to be wholly exceptional circumstances: Cathay Pacific Airways Flight Attendants Union v Cheung & Choy (a firm) HCMP 1863/2007, 4 May 2010 at para 13.
7. In the present actions, there are no such wholly exceptional circumstances. It would therefore not be appropriate to order the plaintiff’s costs be taxed on a solicitor and own client basis. The fact that this was the basis explicitly provided for in the Tenancy Agreements in itself does not amount to any wholly exceptional circumstance.
8. Costs are a matter of discretion for the court: section 52A(1) of the High Court Ordinance, Cap 4. As to the basis of taxation, I would take it as a starting point that the standard party and party basis should apply: Order 62, rule 28(2) of the Rules of the High Court, Cap 4A.
9. Faced with the defendants’ present variation application, by letter dated 10 August 2022, the plaintiff wrote to the court stating that it had no submissions to make and it shall abide by any order which the court will make.
10. In other words, the plaintiff adopts no particular stance in the variation application. This remains so, notwithstanding that it sought indemnity costs in the pleadings and the summonses.
Conclusion
11. In the circumstances, the proper order to make is to adhere to the standard position that the plaintiff’s costs be taxed on a party and party basis, as the plaintiff has put forward no factor justifying a departure from this usual starting point.
12. Costs should generally follow the event. I further make a costs order nisi that in each action the defendant do have costs of the variation application, to be taxed on a party and party basis if not agreed.
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(Winnie Tsui) |
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Deputy High Court Judge |
Mayer Brown, representing the plaintiff in HCA 954/2020 and HCA 955/2020, made no written submissions
Written submissions by YTL LLP, for the defendant in HCA 954/2020 and HCA 955/2020
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