BEST YEAR ENTERPRISES LTD AND ANOTHER v. POWER SECURITIES CO LTD AND ANOTHER

BEST YEAR ENTERPRISES LTD AND ANOTHER v. POWER SECURITIES CO LTD AND ANOTHER

The court exercised its discretion to vary the costs nisi: it held the strike out applications succeeded because the claimant's proceedings were abusive, violative of the reflective loss principle and issue estoppel and amounted to a Henderson-style abuse, and on that basis indemnity costs were justified for the strike out applications with certificates for two counsel where appropriate; by contrast, the relief summons and the costs-variation applications did not warrant indemnity costs and should be ordered on a party-and-party basis (relief summons costs recoverable on party-and-party basis because the breach was minor and attributable to lawyers).

Citation
[2020] HKCFI 344
Parties
1st Plaintiff: Best Year Enterprises Limited; 2nd Defendant: Lung Volais; 3rd Defendant: Tang Ching Ho; 4th Defendant: Sit Sai Hung, Billy; Claimant/party Against Whom Costs Ordered: Sin; Defendant/successful Party: Power Securities; Defendant/successful Party: Ng
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 March 2020
Case Number
HCA1071/2019
Procedural Posture
Civil Litigation — Costs Ruling Following Strike Out Applications / Costs Variation Applications Following Judgment Striking Out Claims (post Judgment Costs Ruling)
Outcome
Costs order nisi varied and made final as specified
Legal Topics
Indemnity Costs, Certificate for Two Counsel, Strike Out Applications, Reflective Loss, Henderson Abuse, Unless Order, Relief Summons
Source Language
EN
Civil Procedure Costs Company Law Injunctions and Remedies Abuse of Process Indemnity Costs Certificate for Two Counsel Strike Out Applications +4 more

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Parties

Best Year Enterprises Limited

1st Plaintiff

Lung Volais

2nd Defendant

Tang Ching Ho

3rd Defendant

Sit Sai Hung, Billy

4th Defendant

Sin

Claimant/party Against Whom Costs Ordered

Power Securities

Defendant/successful Party

Ng

Defendant/successful Party

Procedural Posture

Civil Litigation — Costs Ruling Following Strike Out Applications / Costs Variation Applications Following Judgment Striking Out Claims (post Judgment Costs Ruling)

Legal Issues

  1. 1 Whether costs of strike out applications should be awarded on an indemnity basis
  2. 2 Whether a certificate for two counsel should be granted for successful parties
  3. 3 Whether indemnity costs should be awarded for breach of an unless order

Ratio Decidendi

The court exercised its discretion to vary the costs nisi: it held the strike out applications succeeded because the claimant's proceedings were abusive, violative of the reflective loss principle and issue estoppel and amounted to a Henderson-style abuse, and on that basis indemnity costs were justified for the strike out applications with certificates for two counsel where appropriate; by contrast, the relief summons and the costs-variation applications did not warrant indemnity costs and should be ordered on a party-and-party basis (relief summons costs recoverable on party-and-party basis because the breach was minor and attributable to lawyers).

Court Disposition

Costs order nisi varied and made final as specified

Orders

  • Sin will pay the costs of the strike out applications on an indemnity basis with certificate for two Counsel where applicable, to be taxed if not agreed and paid forthwith.
  • Sin will pay the costs of the Relief Summons on a party and party basis, to be taxed if not agreed and paid forthwith.