KWOK LAI KWAN ROSENA v. KWOK BIU AND ANOTHER

KWOK LAI KWAN ROSENA v. KWOK BIU AND ANOTHER

The 2nd defendant's application to set aside the costs order was refused because it was out of time and there was no reasonable prospect of success: impecuniosity is not a valid ground, the 2nd defendant had previously engaged in proceedings and maintained denial of the plaintiff's claim, and therefore the original costs incidence stands; the court amended the August 11 2022 order under its slip rule to substitute 'a partner of the Plaintiff's solicitors' for 'the Registrar of the High Court' to reflect current practice, and made no order as to costs for the subsequent summonses.

Citation
[2023] HKCFI 17
Parties
Plaintiff: KWOK LAI KWAN ROSENA; 1st Defendant: KWOK BIU; 2nd Defendant: KWOK KIN CHUNG
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 January 2023
Case Number
HCA1797/2016
Procedural Posture
Civil Action / Post Judgment Applications to Vary Order and Set Aside Costs Order
Outcome
2nd defendant's prayers 1 and 2 dismissed; prayer 3 allowed; no order as to costs in relation to the 2nd Defendant's Summons and no order as to costs in relation to the Plaintiff's Summons; paragraph 2 of the 11 August 2022 order amended to substitute 'a partner of the Plaintiff's solicitors' for 'the Registrar of...
Legal Topics
Declaration of Trust, Transfer/conveyance of Registered Property, Appointment to Execute Conveyance, Variation of Court Order, Order 35 Rule 2 Setting Aside Judgment Costs, Order 3 Rule 5 Extension of Time, Slip Rule/inherent Jurisdiction, Taxation of Costs
Source Language
EN
Trust Law Property Law Civil Procedure Costs Law Declaration of Trust Transfer/conveyance of Registered Property Appointment to Execute Conveyance Variation of Court Order +4 more

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Parties

KWOK LAI KWAN ROSENA

Plaintiff

KWOK BIU

1st Defendant

KWOK KIN CHUNG

2nd Defendant

Procedural Posture

Civil Action / Post Judgment Applications to Vary Order and Set Aside Costs Order

Legal Issues

  1. 1 Whether to vary the August 11 2022 order to appoint a partner of plaintiff's solicitors to execute conveyance instead of the Registrar
  2. 2 Whether the 2nd defendant can set aside the costs order under Order 35 rule 2
  3. 3 Whether extension of time should be granted under Order 3 rule 5

Ratio Decidendi

The 2nd defendant's application to set aside the costs order was refused because it was out of time and there was no reasonable prospect of success: impecuniosity is not a valid ground, the 2nd defendant had previously engaged in proceedings and maintained denial of the plaintiff's claim, and therefore the original costs incidence stands; the court amended the August 11 2022 order under its slip rule to substitute 'a partner of the Plaintiff's solicitors' for 'the Registrar of the High Court' to reflect current practice, and made no order as to costs for the subsequent summonses.

Court Disposition

2nd defendant's prayers 1 and 2 dismissed; prayer 3 allowed; no order as to costs in relation to the 2nd Defendant's Summons and no order as to costs in relation to the Plaintiff's Summons; paragraph 2 of the 11 August 2022 order amended to substitute 'a partner of the Plaintiff's solicitors' for 'the Registrar of...

Orders

  • Dismissed prayers 1 and 2 of the 2nd Defendant's Summons
  • Allowed prayer 3 of the 2nd Defendant's Summons (no costs order in relation to Plaintiff's Summons)