MISSION MARKETING LTD v. CHAN YUET FOON AND OTHERS

MISSION MARKETING LTD v. CHAN YUET FOON AND OTHERS

The court exercised its discretion under RHC O.62 r.5 to order indemnity costs from 5 January 2016 because the Defendants failed to respond constructively to the 22/12/2015 Calderbank offer and subsequent improved offers, there were special or unusual features (including negative impact on the Third Party's professional reputation and the Defendants' weak evidential position on the cockloft/false ceiling issue), and the Defendants failed to beat the offers; however the court declined to award enhanced interest on costs because Calderbank offers under O.16 r.10 do not attract the O.22 enhanced interest consequence and HCO s.49 only permits interest from the date of the costs order; a...

Citation
[2021] HKCFI 360
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 February 2021
Case Number
HCMP258/2014
Procedural Posture
Civil HCMP Sale and Purchase of Property With Third Party Proceedings (unlawful Building Works) / Post Judgment Costs Application to Vary Costs Order Nisi (summons Dated 8 June 2020)
Outcome
Costs Order Nisi varied: party and party costs up to and inclusive of 5 January 2016; thereafter costs to Third Party on indemnity basis; certificate for two counsel granted; Defendants to pay 75% of the summons costs on indemnity basis if not agreed.
Legal Topics
Indemnity Costs, Calderbank Offers, Interest on Costs, Certificate for Two Counsel, Third Party Contribution/indemnity, Unlawful Building Works, Causation
Source Language
EN
Civil Property Costs Procedure Indemnity Costs Calderbank Offers Interest on Costs Certificate for Two Counsel +3 more

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Procedural Posture

Civil HCMP Sale and Purchase of Property With Third Party Proceedings (unlawful Building Works) / Post Judgment Costs Application to Vary Costs Order Nisi (summons Dated 8 June 2020)

Legal Issues

  1. 1 Whether the Third Party is entitled to indemnity costs from 5 January 2016
  2. 2 Whether interest on costs (enhanced interest) should be ordered based on Calderbank offers or otherwise
  3. 3 Whether a certificate for two counsel should be granted

Ratio Decidendi

The court exercised its discretion under RHC O.62 r.5 to order indemnity costs from 5 January 2016 because the Defendants failed to respond constructively to the 22/12/2015 Calderbank offer and subsequent improved offers, there were special or unusual features (including negative impact on the Third Party's professional reputation and the Defendants' weak evidential position on the cockloft/false ceiling issue), and the Defendants failed to beat the offers; however the court declined to award enhanced interest on costs because Calderbank offers under O.16 r.10 do not attract the O.22 enhanced interest consequence and HCO s.49 only permits interest from the date of the costs order; a...

Court Disposition

Costs Order Nisi varied: party and party costs up to and inclusive of 5 January 2016; thereafter costs to Third Party on indemnity basis; certificate for two counsel granted; Defendants to pay 75% of the summons costs on indemnity basis if not agreed.

Orders

  • The Defendants do pay to the Third Party the costs of the third party proceedings on party and party basis up to and inclusive of 5 January 2016 and thereafter on indemnity basis.
  • There be a certificate for two counsel granted to the Third Party.