MA WAH YAN AND ANOTHER v. DHARMA REALM BUDDHIST ASSOCIATION, INC. AND OTHERS

MA WAH YAN AND ANOTHER v. DHARMA REALM BUDDHIST ASSOCIATION, INC. AND OTHERS

On reassessment of timing of pleadings, discovery and the pre-trial offers, the court varied the costs order: overall the defendants were entitled to the bulk of costs of the consolidated action but the Plaintiffs were entitled to some costs in respect of the Happy Valley Property and all costs for the Nathan Road Property; accordingly the Plaintiffs shall bear 40% of D1's costs (net of costs of and incidental to adducing expert evidence) and D1 shall bear the costs of this hearing on a party and party basis; Plaintiffs' own costs to be taxed under Legal Aid Regulations; D1's and SJ's costs to be borne from the charity's assets as ordered.

Citation
MA WAH YAN AND ANOTHER v. DHARMA REALM BUDDHIST ASSOCIATION, INC. AND OTHERS
Parties
Plaintiffs: Plaintiffs; 1st Defendant: 1st Defendant (D1); Interested Party: Secretary for Justice (SJ); 2nd Defendant: Flat A9, 5th Floor Mirador Mansion, No.58 Nathan Road, Kowloon (Defendant whose name is unknown); 3rd Defendant: All occupiers, 11th Floor, No.31 Wong Nai Chung Road (Defendant whose name is unknown); 4th Defendant: All occupiers, Lot No.25 Demarcation District No.307, Lantau Island (Defendant whose name is unknown); Defendants: Other defendants not represented
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 October 2016
Case Number
HCA1192/2007
Procedural Posture
Civil Consolidated Property/trust Dispute / Post Trial Costs Variation Application Following Judgment and Order Nisi
Legal Topics
Costs Orders, Charitable Trust, Constructive Trust, Calderbank/open Offers, Discretion to Apportion Costs
Source Language
EN
Civil Procedure Trusts Law Costs Law Costs Orders Charitable Trust Constructive Trust Calderbank/open Offers Discretion to Apportion Costs

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Parties

Plaintiffs

Plaintiffs

1st Defendant (D1)

1st Defendant

Secretary for Justice (SJ)

Interested Party

Flat A9, 5th Floor Mirador Mansion, No.58 Nathan Road, Kowloon (Defendant whose name is unknown)

2nd Defendant

All occupiers, 11th Floor, No.31 Wong Nai Chung Road (Defendant whose name is unknown)

3rd Defendant

All occupiers, Lot No.25 Demarcation District No.307, Lantau Island (Defendant whose name is unknown)

4th Defendant

Other defendants not represented

Defendants

Procedural Posture

Civil Consolidated Property/trust Dispute / Post Trial Costs Variation Application Following Judgment and Order Nisi

Legal Issues

  1. 1 Whether the court should vary the order nisi that the Plaintiffs bear 60% of D1's costs
  2. 2 Whether D1 acted improperly or unreasonably such that it should be deprived of costs
  3. 3 Effect of pre-action and pre-trial Calderbank/open offers on costs allocation

Ratio Decidendi

On reassessment of timing of pleadings, discovery and the pre-trial offers, the court varied the costs order: overall the defendants were entitled to the bulk of costs of the consolidated action but the Plaintiffs were entitled to some costs in respect of the Happy Valley Property and all costs for the Nathan Road Property; accordingly the Plaintiffs shall bear 40% of D1's costs (net of costs of and incidental to adducing expert evidence) and D1 shall bear the costs of this hearing on a party and party basis; Plaintiffs' own costs to be taxed under Legal Aid Regulations; D1's and SJ's costs to be borne from the charity's assets as ordered.