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

Having reviewed the timing of amendments, further discovery and settlement offers, and applying the principle that costs follow the event subject to the court's discretion, the court varied the earlier order nisi: Plaintiffs to bear 40% of D1's costs (net of costs of and incidental to adducing expert evidence); D1 to bear costs of this costs hearing on party-and-party basis; Plaintiffs' own costs to be taxed under Legal Aid Regulations; D1's and Secretary for Justice's costs to be borne out of the charity's assets on the bases specified.

Citation
MA WAH YAN AND ANOTHER v. DHARMA REALM BUDDHIST ASSOCIATION, INC. AND OTHERS
Parties
Plaintiff: Plaintiffs; 1st Defendant: 1st Defendant (D1); 2nd Defendant: Known as Flat A9, 5th Floor, Mirador Mansion, No.58 Nathan Road, Kowloon (Defendants whose names are unknown to the Plaintiffs); 3rd Defendant: All occupiers of 11th Floor, No.31 Wong Nai Chung Road, Hong Kong (Defendants whose names are unknown to the Plaintiffs); 4th Defendant: All occupiers of Lot No.25 in Demarcation District No.307, Lantau Island, New Territories (Defendants whose names are unknown to the Plaintiffs); Interested Party: Secretary for Justice
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 October 2016
Case Number
HCA1190/2007
Procedural Posture
Civil Trusts and Property; Costs Application After Trial / Post Trial Costs Variation Application (order Nisi Varied Following Judgment)
Outcome
Order nisi varied: Plaintiffs to bear 40% of D1's costs (net of expert evidence costs); D1 to bear costs of this hearing on party-and-party basis; taxation and source of payment directed as to charity assets and Legal Aid Regulations.
Legal Topics
Costs Allocation, Charitable Trust, Constructive Trust, Calderbank Offer, Court's Discretion on Costs
Source Language
EN
Civil Procedure Trusts Costs Law Property Law Costs Allocation Charitable Trust Constructive Trust Calderbank Offer +1 more

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Parties

Plaintiffs

Plaintiff

1st Defendant (D1)

1st Defendant

Known as Flat A9, 5th Floor, Mirador Mansion, No.58 Nathan Road, Kowloon (Defendants whose names are unknown to the Plaintiffs)

2nd Defendant

All occupiers of 11th Floor, No.31 Wong Nai Chung Road, Hong Kong (Defendants whose names are unknown to the Plaintiffs)

3rd Defendant

All occupiers of Lot No.25 in Demarcation District No.307, Lantau Island, New Territories (Defendants whose names are unknown to the Plaintiffs)

4th Defendant

Secretary for Justice

Interested Party

Procedural Posture

Civil Trusts and Property; Costs Application After Trial / Post Trial Costs Variation Application (order Nisi Varied Following Judgment)

Legal Issues

  1. 1 Whether the costs order nisi made on 3 August 2016 should be varied
  2. 2 Whether D1 acted improperly or unreasonably so as to deprive it of costs
  3. 3 How costs should be allocated between the three properties in the consolidated action

Ratio Decidendi

Having reviewed the timing of amendments, further discovery and settlement offers, and applying the principle that costs follow the event subject to the court's discretion, the court varied the earlier order nisi: Plaintiffs to bear 40% of D1's costs (net of costs of and incidental to adducing expert evidence); D1 to bear costs of this costs hearing on party-and-party basis; Plaintiffs' own costs to be taxed under Legal Aid Regulations; D1's and Secretary for Justice's costs to be borne out of the charity's assets on the bases specified.

Court Disposition

Order nisi varied: Plaintiffs to bear 40% of D1's costs (net of expert evidence costs); D1 to bear costs of this hearing on party-and-party basis; taxation and source of payment directed as to charity assets and Legal Aid Regulations.

Orders

  • Plaintiffs shall bear 40% of D1's costs (ie net of costs of and incidental to adducing expert evidence)
  • D1 shall bear the costs of this hearing on party-and-party basis