IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO.4515 OF 2002
Before : Hon Burrell J in Chambers
Date of Hearing : 7 March 2006
Date of Decision : 7 March 2006
Date of Reasons for Decision : 9 March 2006
REASONS FOR DECISION
1. At the conclusion of this hearing I dismissed the plaintiffs’ appeal with costs. These are my brief reasons.
2. This is an appeal against a master’s costs order following an unsuccessful application by the defendants for a further order forsecurity for costs.
3. In February 2005, the plaintiffs had, by consent, paid in a sum of money as security (they being foreign plaintiffs) for costs upto the determination of their Order 14 application but without prejudice to the defendants’ rights to claim further security forcosts as a result of the case being proceeded further. The sum paid was $220,000.
4. After the Order 14 application, which the plaintiffs lost, the defendants made a further application primarily because significantfurther costs had been incurred well in excess of the sum paid in by consent in February 2005 arising out of other interlocutorymatters which had come before the court in the intervening period. The further sum claimed was $491,000.
5. The master’s order on the application before him was to make no order. As for costs he ruled that the defendants’ costs be costsin the plaintiffs’ cause. He further ruled that his order was without prejudice to the defendants’ rights to make a furtherapplication for security at a future date.
6. Thus the plaintiffs were not awarded their costs of the application but were ordered the next best thing namely “costs in the plaintiffs’cause”.
7. The issue on appeal is solely whether the master, in exercising his discretion on costs, did so unreasonably and erroneously. Courtsare reluctant, on appeal, to interfere with the exercise of a lower court’s discretion. Where the discretion has been in relationto a costs order the reluctance is even more so.
8. In this case Mr Benjamin Chain, for the plaintiffs, in a concise and succinct submission, was unable to persuade this court thatthe master had acted unreasonably or plainly erroneously when exercising the discretion in the way he did.
9. The cumulative effect of the following matters satisfied me that the costs order was unappealable :
10. If the above factors contributed to the master’s reasoning in exercising his discretion in the way he did, his order on costs cannotbe criticised. His ruling on the application was short of being a total victory for the plaintiffs. His costs order too was onestep short of being the complete order in the plaintiffs’ favour. It reflected the merits of the application and as such was aproper exercise of his discretion.
Mr Benjamin Chain, instructed by Messrs So, Lung & Associates, for the Plaintiffs
Mr Albert Tsang, instructed by Messrs Foo & Li, for the Defendants