IP FUNG KUEN v. SAM KEE FROZEN MEAT CO LTD AND OTHERS

IP FUNG KUEN v. SAM KEE FROZEN MEAT CO LTD AND OTHERS

The Order Nisi was not varied because the Debt Claim was integral to the Property Claim, the time spent on the Debt Claim was minimal (cross-examination under three hours) and any additional time was nominal in the context of the overall successful outcome for the plaintiff, therefore the plaintiff remains the overall successful party and the original costs order stands.

Citation
[2019] HKCFI 429
Parties
Plaintiff (original Action); 1st Defendant (counterclaim): IP FUNG KUEN (葉鳳娟); 1st Defendant (original Action); 1st Plaintiff (counterclaim): SAM KEE FROZEN MEAT COMPANY LIMITED (森記凍肉有限公司); 2nd Defendant (original Action); 2nd Plaintiff (counterclaim): YIP KING WAH ENTERPRISE COMPANY LIMITED (神秘人企業有限公司); 3rd Defendant (original Action): YIP KING WAH (葉景華); 2nd Defendant (counterclaim): COLOURMAX DEVELOPMENT LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 February 2019
Case Number
HCA1897/2009
Procedural Posture
Civil Action and Counterclaim; Application to Vary Costs Order Nisi / Post Judgment Variation Application (summons Issued 25 April 2016); Hearing 20 November 2018; Decision 21 February 2019
Outcome
Defendants' summons to vary the Order Nisi dismissed
Legal Topics
Variation of Costs Order, Costs Discretion, Allocation of Costs Between Connected Claims, Evidence of Loan Cheques, Counterclaim
Source Language
EN
Civil Procedure Costs Contract Property Law Employment Law Equity Variation of Costs Order Costs Discretion +3 more

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Parties

IP FUNG KUEN (葉鳳娟)

Plaintiff (original Action); 1st Defendant (counterclaim)

SAM KEE FROZEN MEAT COMPANY LIMITED (森記凍肉有限公司)

1st Defendant (original Action); 1st Plaintiff (counterclaim)

YIP KING WAH ENTERPRISE COMPANY LIMITED (神秘人企業有限公司)

2nd Defendant (original Action); 2nd Plaintiff (counterclaim)

YIP KING WAH (葉景華)

3rd Defendant (original Action)

COLOURMAX DEVELOPMENT LIMITED

2nd Defendant (counterclaim)

Procedural Posture

Civil Action and Counterclaim; Application to Vary Costs Order Nisi / Post Judgment Variation Application (summons Issued 25 April 2016); Hearing 20 November 2018; Decision 21 February 2019

Legal Issues

  1. 1 Whether the Order Nisi should be varied to apportion costs for the Debt Claim to the defendants
  2. 2 Whether the time and resources spent on the Debt Claim justify awarding costs to the defendants
  3. 3 Whether the Debt Claim was distinct from or integral to the Property Claim

Ratio Decidendi

The Order Nisi was not varied because the Debt Claim was integral to the Property Claim, the time spent on the Debt Claim was minimal (cross-examination under three hours) and any additional time was nominal in the context of the overall successful outcome for the plaintiff, therefore the plaintiff remains the overall successful party and the original costs order stands.

Court Disposition

Defendants' summons to vary the Order Nisi dismissed

Orders

  • Defendants' summons issued 25 April 2016 dismissed
  • Defendants to bear the plaintiff's costs of the variation application jointly and severally