FASTWAY (H.K.) INVESTMENT LTD v. WING BO MOTOR CO

DCCJ3507/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3507 OF 2008

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BETWEEN

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Decision

1.  On the 1^st day of the trial of this case on 5.12.2011, by way of summons the Defendant asked this Court, inter alias, for leave to re-amend the defence and counterclaim. At 11.30 a.m. on 6.12.2011, I made an order in terms of the summons. After that I proceeded to deal with the issue of costs. The Defendant opposed the Plaintiff’s application for costs in its favour. The hearing of arguments from both sides lasted until shortly before 1.00 p.m. The Defendant then asked for an adjournment to 3.30 p.m. so that it could prepare affirmation(s) to explain why the application for re-amendment of the defence and counterclaim was made at such a late stage. The Court resumed hearing shortly about 3.30 p.m.

2.  It is the Defendant who sought the Court’s leave to re-amend its defence and counterclaim.  As a result the case had to be adjourned to April 2012 for trial.  Without such an application, the trial could have started on 5.12.2011.  It is the Defendant who made this application, resulting in the abortion of the trial, and causing the Plaintiff’s costs to be wasted.  If the Plaintiff has to wait for some time before it is able to recover the thrown away costs, it will be deprived of its money for a certain period of time.  There is no reason why the Plaintiff should suffer such a disadvantage through no fault of its own.  It should be allowed to recover the wasted costs from the Defendant forthwith, instead of having to wait until the conclusion of the trial.  Therefore I order that the costs of and occasioned by the application for re-amendment of the defence and counterclaim and the costs thrown away by the adjournment due to this application for re-amendment be to the Plaintiff, to be paid forthwith. 

3.  As for the hearing during the morning until shortly before 1 p.m on 6.12.2011, the Plaintiff was reasonable to oppose the application in the absence of any affirmation from the Defendant to explain why the application was made at such a late stage.  Hence I make no order for costs regarding this period.

4.  It is the Defendant asked for the case to be adjourned to 3.30 p.m.  Hence I order that the costs covering the period from shortly before 1 p.m. to 3.30 p.m. be borne by the Defendant.   The Plaintiff has failed to oppose the application for re-amendment of the defence and counter-claim, when the Defendant’s affirmations were available at around 3:30pm.  Accordingly I order that the costs covering the period from about 3.30 p.m. to the end of the day on 6.12.2011 be paid by the Plaintiff to the Defendant.

5.  All the costs hereinabove mentioned are to be taxed, if not agreed, with Certificate for Counsel.  The Defendant’s own costs to be taxed in accordance with Legal Aid Regulations.