MA NAM v. PEACEFUL CONSULTANTS LTD AND ANOTHER

HCA 2305/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2305 OF 2008

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D E C I S I O N

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1.  This is an application for variation of a costs order nisi I made in my judgment handed down on 25 August 2010.

2.  I took a serious view of the conduct of the 2nd defendant and therefore made no order as to costs until up to and including the first day of the trial, and also excluded the cost of the second witness statement of the 2nd defendant. 

3.  I took the view that the 2nd defendant, being the mortgagee, was holding the balance of proceeds of sale as a trustee.  His refusal to come up with an account up to the first day of the trial and only gave an account upon the insistence of court was a breach of trust.  He maintained the breach after he was legally represented and he maintained it up to the first day of the trial.

4.  However, after listening to submissions by counsel on both sides, I think that my costs order nisi was too severe on the 2nd defendant, bearing in mind that the brief to counsel to conduct the trial was to cover very many points, and quite a negligible part of it had to do with the rate of interest and the amount of interest charged.  Also the need for the interrogatories on the expensive gifts allegedly sold by the plaintiff to the 2nd defendant was caused by the plaintiff’s averment to the same in his witness statement.

5.  Hence I think I should vary my costs order nisi to provide further that the brief of counsel by the defendants to conduct the trial should be included in the costs payable by the plaintiff to the defendants. The plaintiff should also pay the defendants the costs of and occasioned by and in relation to the administering of interrogatories by the defendants on the plaintiff.  That is for the interrogatories and the answers.

6.  However, I would make no order as to costs for today’s hearing and for this application to vary, because the breach of trust point was only raised by me yesterday and was not alerted to by both sides.  That point explains why my variation is quite limited, and also that the amount of variation is proposed by me, and the defendants seem to be contented with it. So I make no order as to costs for the application for variation of the costs order nisi.