CHAN CHING KIT KATHERINE v. LAM SIK SHI AND ANOTHER

CHAN CHING KIT KATHERINE v. LAM SIK SHI AND ANOTHER

Because the 2nd defendant raised and fully argued the distinct issue of the exercise of the court's discretion and lost on every ground advanced, the court properly exercised its discretion to deprive him of part of his costs attributable to that issue (25%). The order nisi as to costs against both defendants is affirmed. Costs relating to the drafting and negotiation of the receiver's terms are part of the proceedings and the 2nd defendant is entitled to 75% of those costs to be taxed party and party. The 2nd defendant must pay the plaintiff's costs of the present applications.

Citation
CHAN CHING KIT KATHERINE v. LAM SIK SHI AND ANOTHER
Parties
Plaintiff: CHAN CHING KIT KATHERINE; 1st Defendant: LAM SIK SHI; 2nd Defendant: LAM SIK YING
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 October 2002
Case Number
HCMP2239/2000
Procedural Posture
Partition Proceedings / Charging Order and Equitable Execution (partition Ordinance Cap.352) / Post‑judgment Application on Costs and Terms of Receiver Appointment (decision on Costs)
Outcome
Order nisi as to costs affirmed against both 1st and 2nd defendants; 2nd defendant's application to vary the order nisi dismissed in part; orders made on receiver costs and costs of the hearing
Legal Topics
Partition Ordinance, Locus Standi, Order of Sale, Exercise of Judicial Discretion, Apportionment of Costs, Receiver Appointment, Order Nisi Variation
Source Language
EN
Property Law Civil Procedure Family Law Equity (receivership) Costs Law Partition Ordinance Locus Standi Order of Sale +4 more

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Parties

CHAN CHING KIT KATHERINE

Plaintiff

LAM SIK SHI

1st Defendant

LAM SIK YING

2nd Defendant

Procedural Posture

Partition Proceedings / Charging Order and Equitable Execution (partition Ordinance Cap.352) / Post‑judgment Application on Costs and Terms of Receiver Appointment (decision on Costs)

Legal Issues

  1. 1 Whether the plaintiff had locus standi/jurisdiction to seek an order of sale under the Partition Ordinance
  2. 2 Whether the court should exercise its discretion to order a sale of the property
  3. 3 Whether the order nisi as to costs against the 2nd defendant should be varied to award him all costs

Ratio Decidendi

Because the 2nd defendant raised and fully argued the distinct issue of the exercise of the court's discretion and lost on every ground advanced, the court properly exercised its discretion to deprive him of part of his costs attributable to that issue (25%). The order nisi as to costs against both defendants is affirmed. Costs relating to the drafting and negotiation of the receiver's terms are part of the proceedings and the 2nd defendant is entitled to 75% of those costs to be taxed party and party. The 2nd defendant must pay the plaintiff's costs of the present applications.

Court Disposition

Order nisi as to costs affirmed against both 1st and 2nd defendants; 2nd defendant's application to vary the order nisi dismissed in part; orders made on receiver costs and costs of the hearing

Orders

  • Plaintiff to pay 75% of the 2nd defendant's costs of these proceedings (order nisi affirmed)
  • Plaintiff to pay 50% of the 1st defendant's costs of these proceedings (order nisi affirmed)