FONG YIN CHEUNG v. HO KWAN CHU AND OTHERS

HCA436/2005

IN THE HIGH COURT OF THE

ONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 436 OF 2005

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BETWEEN

FONG YIN CHEUNG(方燕翔) Plaintiff
and
HO KWAN CHU (何君柱) 1st Defendant
HO KWAN YIU JUNIUS (何君堯) 2nd Defendant
K.C. HO & FONG, SOLICITORS & NOTARIES
(何君柱、方燕翔律師樓)(A FIRM)
formerly known as
(何君柱、方燕翔律師樓)
K.C. HO & FONG, SOLICITORS
3rd Defendant

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Before : Hon Suffiad J in Chambers

Date of Written Submissions on Costs : 21 August 2009

Date of Ruling on Costs : 1 September 2009

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RULING ON COSTS

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1. This is a Ruling on costs given following a written judgment dated 7 August in this matter dismissing the plaintiff’s appeal fromthe decision of Master de Souza, and after written submissions on costs had been lodged by the parties. This Ruling on costs is tobe read in conjunction with that written judgment.

2. The plaintiff’s application was for striking out the Defence and Counterclaim of the defendants on the grounds of non-compliancewith an Unless Order.

3. That application to strike out was heard by Master de Souza who dismissed the application and awarded costs (on a gross sum assessment)of $800 to the defendants to be paid forthwith.

4. The plaintiff appealed from the decision of the Master and that appeal was also dismissed after hearing the parties for the reasonsstated in my written judgment dated 7 August 2009.

5. The defendants now seek costs of the appeal and also submit that the cost order of the Master should not be disturbed.

6. The plaintiff on the other hand submits that there should be no order as to costs, both in respect of the appeal and also for thehearing below.

7. The basis of the plaintiff so submitting is that although the plaintiff did not succeed in striking out the Defence and Counterclaimof the defendants, the Court, in dismissing the appeal, was highly critical of the further and better particulars given by the defendants.

8. Be that as it may, the unsatisfactory nature of the particulars given should not be a factor in determining the plaintiff’s liabilityfor costs when the plaintiff’s appeal was wholly unsuccessful. The striking out application was initiated by the plaintiff andthat application proved to be wholly misconceived. Courts generally discourage such satellite litigation.

9. In the circumstances I am of the view that the plaintiff ought to bear the costs of the unsuccessful appeal from the Master’sdecision.

10. Having said that, the defendants cannot be said to be without fault either due to the unsatisfactory nature of the particulars givenby them.

11. Exercising my discretion in the matter, I will order two-thirds costs of the appeal to be paid by the plaintiff to the defendants.

12. I have been supplied with a skeleton bill of costs from the defendants in respect of the appeal. That skeleton bill totals $116,325.00.

13. I would have made a gross sum assessment of the full costs of the appeal to be $60,000.00

14. In awarding two-thirds the costs of the appeal to the defendants, I accordingly adopt the amount of $40,000 which will be the coststo the defendants of the appeal. The amount of $40,000 costs is to be payable forthwith.

15. I do not propose to disturb the costs order made below by the Master when he dismissed the application for striking out.

(A.R. Suffiad)
Judge of the Court of First Instance
High Court

Mr Leo Remedios, instructed by Messrs Lam & Co., for the Plaintiff

Mr Adrian Leung, instructed by Messrs K.C. Ho & Fong, for the 1st, 2nd and 3rd Defendants