Man Tim Wan v Chung Tai Hoi

CourtDistrict Court (Hong Kong)
Judgment Date26 May 2010
Judgement NumberDCCJ5012/2007
Subject MatterCivil Action
DCCJ005012A/2007 MAN TIM WAN v. CHUNG TAI HOI

DCCJ 5012 of 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL JURISDICTION

ACTION NO. 5012 OF 2007

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BETWEEN

MAN TIM WAN (文添穩) Plaintiff
and
CHUNG TAI HOI (宗體開) Defendant

____________

Before: Deputy District Judge C. Lee in Chambers

Dates of Hearing: 26th May 2010

Date of Judgment: 26th May 2010

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J U D G M E N T

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A. APPLICATION

1. This is the Plaintiff’s application for varying the costs order nisi dated 19th April 2010 to the effect that the Defendant do pay cost on indemnity basis as per his summons dated 18th May 2010.

2. The Defendant opines that there is no good reason to order the Defendant to pay costs on indemnity basis. The Defendant simply exercised her right to defend, though it was rejected after trial.

B. APPLICABLE LEGAL PRINCIPLES

3. As to under what circumstances a court may order cost on indemnity basis, the Court of Appeal in Choy Yee Chun v Bond Star Development Ltd [1997] HKLRD 1327 reviewed the cases and summarised the law as follows:

“A taxation of the successful party’s costs on an indemnity basis could properly be ordered where the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive, or in an oppressive manner. Any proceedings instituted or prosecuted in such circumstances as to constitute an affront to the court could properly be subject of a direction for the taxation of the successful party’s cost on the indemnity basis… The discretion was not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be “appropriate”. The principle for an award of an order of costs on an indemnity basis applied equally to those who not only instituted proceedings but who defended them.”

C. DISCUSSION

4. In the present case, the Plaintiff sought to recover possession of the Property from the Defendant. The Defendant admitted to be the tenant of the Property but she contended inter alia that her late husband told her and the Plaintiff once made a promise that the whole family could reside there as long as they wish. In essence, The Defendant relied on a hearsay promise.

5. Generally speaking, the court will not award costs on indemnity basis merely because the defence case was rejected. However, in the present case...

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