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Lam Chi Tat, Anthony And Another v Kam Yee Wai, Andrew

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date21 June 2012
Year2012
Judgement NumberDCCJ1545/2009
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ1545A/2009 LAM CHI TAT, ANTHONY AND ANOTHER v. KAM YEE WAI, ANDREW

DCCJ1545/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1545 OF 2009

________________________

BETWEEN

LAM CHI TAT, ANTHONY AND
CHENG SHUI YEE		 Plaintiffs

and
KAM YEE WAI, ANDREW Defendant

________________________

Before: Her Honour Judge H C Wong in Chambers (Open to the public)

Date of Hearing: 21 June 2012

Date of Decision: 21 June 2012

________________________

D E C I S I O N

________________________

Variation of cost nisi order

1. First of all, I would like to give my reasons and decision on the variation of cost nisi order. The defendant applies for a variation of cost order nisi at today’s hearing. The basis is the defendant had succeeded in his counterclaim in the sum of $41,500. Consequently, the defendant argued the defendant should have his costs on the counterclaim.

2. Mr Lau, counsel for the defence, submitted that the plaintiffs had resisted the defendant’s counterclaim all along and the defendant eventually recovered the sum he asked for. It follows that he should have his costs. He refers the court to the case of Chell Engineering Limited v Unit Tool and Engineering Company Limited [1951] All ER 378 at 380G and the case of Seacraft Hotel (Teignmouth) Limited v Goble [1984] 3 All ER 116.

3. The defendant’s application is opposed by the plaintiffs. Miss Wong, counsel for the plaintiffs, submitted that the plaintiffs did not dispute the liability to refund the defendant. The only issue had always been the quantum only. Further, the defendant amended the defence and counterclaim on 18 May 2011, the third day of trial, to the figure of $41,500 which was the sum he eventually obtained judgment on, and the plaintiff, Mr Lam, accepted during cross-examination on the same day of 18 May 2011 the plaintiffs’ liability to refund the defendant. Therefore, there was no waste of trial time on the issue, and this was confirmed in the plaintiffs’ final submission. Furthermore, the main issue at the trial was whether the defendant was liable to pay the plaintiffs back the defendant’s share of contribution to the Hong Kong Solicitors Indemnity Fund Limited (or PIF) for the year 2004/2005 and 2005/2006; and if he was, the quantum of the contribution payable.

4. Miss Wong referred the court to the cases of Universal Cycles PLC v Grangebriar Limited [2000] WL 439, paragraphs 21 to 22 and 28, and the case of In Re Elgindata Limited (No. 2) [1992] 1 WLR 1207.

5. In the Elgindata case, Nourse LJ set out the principles applicable in awarding costs under Order 62 of the Rules of Civil Procedure at page 1214, A to C of his judgment, these principles are:

“The principles are these. (i) Costs are in the discretion of the court. (ii) They should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made. (iii) The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or a part of his costs. (iv) Where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party’s costs.”

Similar principles appear in the Hong Kong Civil Procedure 2012 edition at page 1103, under Order 62, rule 5(2)(a) to (d) and these are:

“For the purpose of paragraph (1)(e), the conduct of the parties includes-

(a) whether it was reasonable for a party to raise, pursue or...

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