CHOW SHING KEE INVESTMENT CO LTD v. THE INCORPORATED OWNERS OF MALAHON APARTMENT AND OTHERS

HCMP 1729/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1729 OF 2011

————————

BETWEEN

CHOW SHING KEE INVESTMENT COMPANY LIMITED Plaintiff

and

THE INCORPORATED OWNERS OF MALAHON APARTMENT 1st Defendant
區懿明 2nd Defendant
劉福忠 3rd Defendant
蔣鳳美 4th Defendant
吳麗雅 5th Defendant
黃惠芳 6th Defendant
黎霓 7th Defendant
吳海鏞 8th Defendant
劉鶼鶼 9th Defendant
區志珍 10th Defendant
鄧平 11th Defendant
————————

Before: Deputy High Court Judge Houghton, SC in Court

Dates of Hearing: 19 June 2012
Date of Decision: 19 June 2012
Date of Reasons for Decision: 20 July 2012

———————–

D E C I S I O N

———————–

REASONS FOR DECISION ON COSTS

1. On 27 April 2012 I gave a decision on the submissions of no case to answer by the Defendants at the close of the Plaintiff’s evidencein regard to the in these Miscellaneous Proceedings. Pursuant to the decision I made, which was to the effect that the 2nd to 11th Defendants had no case to answer, proceedings against those defendants ceased. However the matter of costs remained for determination. Accordingly on 19 June 2012, on the application of the parties, I heard submissions on costs. At the conclusion of the hearingI accepted the submissions made on behalf of the 2nd to 11th Defendants and awarded costs in favour of those Defendants on a party and party basis.

2. Submissions were addressed to me on behalf of the Plaintiff to the effect that matters of costs should be deferred until after aforthcoming appeal. I was not persuaded that would be an appropriate course of action. I do not accept that any good reason hasbeen given why costs should not now be dealt with. Moreover, I do not agree that matters relevant to the liability for costs asbetween the Plaintiff and the 2nd to 11th Defendants are to be found in the future proceedings between the Plaintiff and the first Defendant.

3. Nor was I persuaded that the 2nd to 11th Defendants should receive only a proportion of their costs on the basis that their success on the “no case” submission was in regardto a narrow legal issue which could, if considered by itself, have been dealt with quickly. While I agree that the 2nd to 11th Defendants could have taken that point as a strikeout application at some earlier stage, I do not think that they are to be deprivedof a proportion of their costs simply on that basis. I do not accept that the 2nd to 11th Defendants can be said to have improperly or unnecessarily raised issues in their defence.

4. Nor on the other hand was I persuaded by the 2nd to 11th Defendants that the circumstances were such as to entitle those Defendants to costs on an indemnity basis. My views on this were,in part coloured by the submissions made on behalf of the Plaintiff to the effect that the 2nd to 11th Defendants would have mitigated the overall cost of proceedings by adopting a different tactical approach to the litigation. Accordingly,I ordered costs in favour of the 2nd to 11th Defendants on a party and party basis.

5. I record, for the avoidance of doubt and for the assistance of the taxing master, that the costs of the 2nd to 11th Defendants including the appearance by counsel, at the hearing before me on 19 June 2012, are to form part of the costs encompassedwithin the Order referred to above.

6. For completeness I record that submissions were addressed to me as to whether a costs order in “Bullock” form might be appropriate. I made no decision on that application of the Plaintiff, this being a matter to be addressed as and when costs as between the Plaintiffand the 1st Defendant are addressed. Those costs have been reserved, by agreement between the relevant parties, for further determination.

(Anthony Houghton, SC)
Deputy High Court Judge

Mr Colin Wright and Mr Iain Brown, instructed by Messrs Orrick, Herrington & Sutcliffe, for the Plaintiff

Mr Andrew Mak, instructed by Messrs Tung, Ng, Tse & Heung, for the 1st Defendant

Mr Bernard Man, instructed by Messrs Wong, Hui & Co, for the 2nd and 7th Defendants

Mr Patrick Chong, instructed by Messrs T Y Lam & Co, for the 3rd-6th and 8th-11th Defendants