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Midland Business Management Ltd And Another v Lo Man Kui

Judgment Cited authorities 2 Cited in 53 Precedent Map Related
Vincent
Judgment Date04 March 2011
Citation[2011] 2 HKLRD 667
Judgement NumberHCA1599/2010
Subject MatterCivil Action
CourtHigh Court (Hong Kong)
HCA1599A/2010 MIDLAND BUSINESS MANAGEMENT LTD AND ANOTHER v. LO MAN KUI

HCA 1599/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1599 OF 2010

____________

BETWEEN

MIDLAND BUSINESS MANAGEMENT LIMITED 1st Plaintiff
MIDLAND REALTY INTERNATIONAL LIMITED 2nd Plaintiff
and
LO MAN KUI
(also known as HOWARD LO)		 Defendant

____________

Before: Hon Lam J in Chambers

Date of Filing of Submission on Costs by Defendant: 10 January 2011

Date of Filing of Submission on Costs by Plaintiff: 24 January 2011

Date of Filing of Reply on Costs by Defendant: 21 February 2011

Date of Judgment on Costs: 4 March 2011

______________________

JUDGMENT ON COSTS

______________________

1. In my judgment delivered on 20 December 2010, I made a costs order nisi that the Plaintiffs shall pay the Defendant’s costs of the summons in any event. The Defendant made an application for variation. There are three aspects for which variations are sought. They are summarized by counsel for the Defendant in his written submissions as follows,

(a) That the order for costs should expressly provided that the costs ordered against the Plaintiffs should include all reserved costs, in particular, the costs of the application and hearing on 5 November 2010;

(b) That there should be certificate for two Counsel;

(c) That the costs should be taxed payable forthwith.

2. The Plaintiffs did not wish to make any submission regarding (a) and (b). For the reasons put forward by counsel for the Defendant in his skeleton, I consider the proposed variations to be justified and I order accordingly.

3. The Plaintiffs objected to variation (c) and the skeleton submissions of Miss Tam SC (who were instructed by the Plaintiffs together with Mr Wong in place of the original team of counsel to argue on the question of costs) focused on it.

4. Mr Yan SC relied on Kickers International SA v Paul Kettle Agencies Ltd [1990] FSR 436 and Naf Naf SA v Dickens (London) Ltd [1993] FSR 424. He submitted that applying the criteria set out in those cases (and applied in subsequent cases), this court should order costs to be paid by the Plaintiffs to the Defendant to be taxed and payable forthwith on the following grounds,

(a) The amount of costs incurred by the Defendant under the summons is sufficiently substantial to justify a separate taxation;

(b) It is not unfair to order immediate payment as it would not have serious effect on the Plaintiffs’ cash flow and there is little chance of eventual set off given that the dismissal of the summons is likely to be the end of the matter. In any event, the Defendant has the means to repay;

(c) Given the amount of costs, if there is no immediate taxation, the Defendant would suffer prejudice if he is kept out of his money until trial which may not occur;

(d) There is a real possibility that there will not be any trial in the light of this court’s finding that the Plaintiffs do not have any good prospect of success and the deficiency in the other cause of action based on procurement of breach of contracts.

5. Miss Tam submitted that generally the court’s approach to costs of interlocutory proceedings is to award costs ‘in any event’ because the court’s view formed in the interlocutory proceedings is a provisional one without the benefit of seeing the witnesses tested in cross-examination. She contended that the burden is on the successful party to demonstrate that there are sufficient factors to justify a departure. Whilst counsel did not dispute the factors set out in Kickers and Naf are relevant, she urged the court to take into account of all circumstances in the exercise of its discretion on costs. In the present case, counsel submitted that there is insufficient ground to justify a departure from the usual order because,

(a) The Plaintiffs did not appeal against the substantive judgment for practical consideration: the appeal is likely to be academic in view of the short remaining lifespan of the relevant covenants;

(b) The court’s decision on the merits were based on the evidence before the court and the Plaintiffs intended to shore up their case to support the validity of the covenants by way of additional evidence and amendments to the Statement of Claim;

(c) The Plaintiffs would also put forward amendments to meet the objections to the claim based on procuring breach of contracts;

(d) The Plaintiffs have the intention to bring the claims to trial for recovering damages. The refusal of interlocutory injunction is not determinative of the action;

(e) The contents of the affirmations used by the parties focusing on the merits of the claims would be repeated in witness statements to be filed for the trial. Thus the costs of the injunction are neither severable nor self-contained from the rest of the action, as such should be left for taxation until the end of the trial;

(f) There is no suggestion that by keeping him out of his money (in terms of costs awarded in his favour), the Defendant will...

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