YIM WAI LING AND ANOTHER v. YUEN CHIK WAH AND ANOTHER

YIM WAI LING AND ANOTHER v. YUEN CHIK WAH AND ANOTHER

Sanctioned payments/offers that include a term depriving a plaintiff of the entitlement to costs under O.22 r.20(1) are inconsistent with the mechanism of Order 22 and therefore do not validly attract the consequences of O.22 r.23; exercising discretion under O.22 r.2(4) was not appropriate to impose indemnity costs or enhanced interest here, but because the awarded damages fell within Small Claims Tribunal jurisdiction the plaintiffs' costs are to be assessed on a scale as if the claim had been brought in the SCT; Costs Order Nisi accordingly varied to that effect and specific payment distribution ordered.

Citation
YIM WAI LING AND ANOTHER v. YUEN CHIK WAH AND ANOTHER
Parties
1st Plaintiff: Yim Wai Ling; 2nd Plaintiff: Poon Chun Hong; 1st Defendant: Yuen Chik Wah; 2nd Defendant: Kwan Sin Man
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
14 February 2017
Case Number
DCCJ663/2013
Procedural Posture
Civil Action Nuisance (water Seepage) / Post Judgment Costs Variation (summons Under Order 62 R 5)
Outcome
Costs Order Nisi varied: costs to plaintiffs including reserved costs to be summarily assessed as if claim had been brought in the Small Claims Tribunal; no order as to costs for the variation application; agreed payments from funds in court ordered.
Legal Topics
Sanctioned Payment, Offer to Settle, Costs Orders, Discretion Under Order 22 R 2(4), Small Claims Tribunal Jurisdiction, Summary Assessment
Source Language
EN
Civil Procedure Tort Private Nuisance Costs Law Civil Enforcement Sanctioned Payment Offer to Settle Costs Orders Discretion Under Order 22 R 2(4) +2 more

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Parties

Yim Wai Ling

1st Plaintiff

Poon Chun Hong

2nd Plaintiff

Yuen Chik Wah

1st Defendant

Kwan Sin Man

2nd Defendant

Procedural Posture

Civil Action Nuisance (water Seepage) / Post Judgment Costs Variation (summons Under Order 62 R 5)

Legal Issues

  1. 1 Whether a sanctioned payment/offer containing a term as to costs is valid to attract the consequences of Order 22 r 23
  2. 2 Whether the court should exercise its discretion under Order 22 r 2(4) to apply costs consequences despite invalidity
  3. 3 Appropriate scale of taxation given the award falls within Small Claims Tribunal jurisdiction

Ratio Decidendi

Sanctioned payments/offers that include a term depriving a plaintiff of the entitlement to costs under O.22 r.20(1) are inconsistent with the mechanism of Order 22 and therefore do not validly attract the consequences of O.22 r.23; exercising discretion under O.22 r.2(4) was not appropriate to impose indemnity costs or enhanced interest here, but because the awarded damages fell within Small Claims Tribunal jurisdiction the plaintiffs' costs are to be assessed on a scale as if the claim had been brought in the SCT; Costs Order Nisi accordingly varied to that effect and specific payment distribution ordered.

Court Disposition

Costs Order Nisi varied: costs to plaintiffs including reserved costs to be summarily assessed as if claim had been brought in the Small Claims Tribunal; no order as to costs for the variation application; agreed payments from funds in court ordered.

Orders

  • Costs of this action to the plaintiffs including all costs reserved to be summarily assessed by the court if not agreed, assessed on a scale as if the claim had been brought in the Small Claims Tribunal
  • If parties fail to agree on quantum within 14 days, plaintiffs to submit statement of costs within 7 days and defendants to comment within 7 days; summary assessment by paper disposal