DCCJ3244/2022 CHAU TAT WING, suing in his own capacity and as the sole executor of the estate of WONG TIM LUN, deceased v. WONG KWAI WAN AND ANOTHER - LawHero
DCCJ3244/2022
區域法院（民事）His Honour Judge Harold Leong30/3/2025[2025] HKDC 517
DCCJ3244/2022
A A
B B
DCCJ 3244/2022
C [2025] HKDC 517 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CIVIL ACTION NO. 3244 OF 2022 E
________________
F BETWEEN F
G CHAU TAT WING, suing in his own capacity and as Plaintiff G
the sole executor of the estate of WONG TIM LUN,
deceased
H H
and
I I
WONG KWAI WAN 1st Defendant
J SECRETARY FOR JUSTICE (SUED FOR AND ON 2nd Defendant J
BEHALF OF DIRECTOR OF LANDS)
K K
Coram: His Honour Judge Harold Leong in Chambers
L
Date of Hearing: 17 January 2025 L
Date of Decision: 31 March 2025
M M
___________________
N N
DECISION
___________________
O O
1. This court has handed down the judgment on 12 December
P P
2024 (“the Judgement”) to dismiss the plaintiff’s claim and the 2 nd
defendant’s counterclaim. The court further made a cost order nisi that the
Q Q
R R
A A
-2-
B B
plaintiff shall pay the costs of this action to the 1st and 2nd defendants to be
C taxed if not agreed with certificates granted for one counsel each to the 1st C
and 2nd defendants.
D D
2. The 1st defendant took out a Summons on 23 December 2024
E (“the Summons”) for, inter alia, the following: E
F
a. An order to vary paragraph 97 of the Judgement (“the F
Judgment Variation Order”);
G G
b. An order to vary the cost order nisi in paragraph 98 of the
H H
Judgment (“the Costs Variation Order”); and
I I
c. An order for the sanctioned payment by the 1st defendant be
paid out (“the Payment-out Order”).
J J
The Judgment Variation Order
K K
L 3. In the current action, the 1st defendant has made a L
counterclaim against the plaintiff (pages 54 - 55 of the Hearing Bundle):
M M
“(1) Delivery of vacant possession of the Area to the 1st defendant;
N N
(2) Mesne profits in respect of the Area at market rate for the period
O from September 2012 until the date of delivery of vacant possession O
of the Area to the 1st defendant;
P P
(3) Interest at such rate and for such period as the court deems fit…”
Q Q
R R
A A
-3-
B B
C 4. The Judgment, under paragraph 97, has ordered that the C
plaintiff’s claim against the 1st and 2nd defendant be dismissed and that the
D 2nd defendant’s counterclaim be also dismissed, but there is no order D
regarding the 1st defendant’s counterclaim. The Judgment has not been
E drawn up as yet. E
F F
5. There is no dispute that this omission in the Judgment is an
obvious mistake. The legal principle for such situation is that:
G G
“Beyond correcting any “slips or omission”, before an order for the
H H
judgment has been drawn up or perfected, the court has a wider
power to rectify mistakes in the judgment…” (Ng Cheuk Hang v
I I
Wams Design Ltd [2022] 1 HKLRD 587)
J J
“The court court’s jurisdiction to reconsider its judgment before its
K
order had been perfected could only be exercised in a case which K
raised considerations, in the interest of justice, which
L were…exceptional. An exceptional case did not have to be uniquely L
special, and “strong reasons” was perhaps an acceptable
M alternative to “exceptional circumstances”…There were, of course, M
cases where an error of fact or law might be too plain for argument,
N and it was better that the error was corrected without imposing on N
the parties the need for an appeal…” (per Woo JA in the court of
O Appeal case of Sun Jianqiang v Trans-Island Limousine Service Ltd O
[2004] 1 HKC 533)
P P
Q Q
R R
A A
-4-
B B
6. Indeed, this court has already considered the 1st defendant’s
C counterclaim when drafting the Judgment. The crux of the Judgment was C
that the 2nd defendant (the Director of Lands) has already rejected the EGS
D Survey and adopted the 2012 Survey as the boundary records it would D
maintain under clause 4(a) of the Land Survey Ordinance, Cap 473 (“the
E LSO”). As such, it is no business of the court to provide an “alternative E
forum” to override such the decision when this was not in form of a Judicial
F F
Review action challenging any procedural defects. Further, under clause
28 of the LSO, the responsibility for the accuracy of the boundaries lies
G G
with the authorized land surveyor, who is not a defendant in this action.
Thus, the claims against both the 1st and 2nd defendants were entirely
H H
misconceived. (paragraphs 32-42, 63-67 of the Judgment)
I I
7. The Judgment, in dismissing the 2 nd defendant’s
counterclaim, also repeats the same position: it is no business of the court
J J
to declare the accuracy of a survey map. Any dispute in such should lie in
a claim of negligence (amongst any other causes of action) against the
K K
authorized land surveyor who produced the disputed survey map
L (paragraph 96 of the Judgment). L
M 8. Given this decision, I find it strange that Mr. Kelvin Leung, M
counsel for the plaintiff, sought to argue that the 1st defendant’s
N counterclaim for vacant possession was somehow unenforceable because N
the court has not determined “where the true common boundary lies”.
O O
9. Further, Mr. Leung argued that, since the Judgment stated that
P P
the court has no jurisdiction as an adjudicator of the accuracy of various
survey reports, the court has not decided whether the 2006 or the 2012
Q Q
R R
A A
-5-
B B
Survey Plan is more accurate. As such, neither Survey Plan has any legal
C effect. C
D 10. I would explain, as I have already done so during the hearing, D
that it is no business of the court to, figuratively, invite the parties to attend
E the site and draw the boundary on the ground with a chalk pen. In my view, E
whilst the court has no jurisdiction to adjudicate which survey plan is
F F
“more accurate”, it, of course, has the jurisdiction to enforce the boundary
according to the survey map currently maintained by the Director of Lands
G G
under clause 4(a) of the LSO.
H H
11. Accordingly, the court finds that the boundary between the
plaintiff’s and the 1st defendant’s land (amongst other boundaries) is
I I
determined by the current records maintained by the Director of Lands, i.e.
J
the 2012 Survey Plan. This showed that the Area as defined in the 1st J
defendant’s Re-Amended Defence is within the 1st defendant’s land. It is
K not disputed that the plaintiff has constructed a wall on the Area so it must K
follow that the court finds for the 1st defendant’s counterclaim for
L trespassing. L
M 12. As for the counterclaim for the mesne profit, the 1st defendant M
has not provided any evidence to support any “market rate” during the trial.
N It is a small area in any case so I would not make any award. N
O O
13. Accordingly, the court will give the order to amend paragraph
97 of the Judgment to read:
P P
Q Q
R R
A A
-6-
B B
I would order that P’s claim against D1 and D2 be dismissed.
C D2’s counterclaim is also dismissed. I would further order that C
P shall, within 28 days of this Judgment, deliver vacant
D possession of the Area as described under paragraph 4(f) of D1’s D
Re-Amended Defence and as shown accordingly in the copy plan
E annexed in the same. E
F F
The Costs Variation Order
G G
14. Under paragraph 2 of the Summons, the 1st defendant applied
for:
H H
(1) The plaintiff do pay the 1st defendant’s cost of the action
before 11 July 2022 at High Court scale;
I I
(2) The plaintiff do pay the 1st defendant’s costs of the action,
J J
including all costs reserved, on indemnity basis with
K
certificate for counsel, to be taxed if not agreed; and K
L (3) The plaintiff do pay the 1st defendant’s enhanced interest L
on costs at the rate of judgment rate plus 5% p.a. until the
M date of Judgment to be taxed if not agreed. M
N 15. This action was commenced in the High Court and was N
transferred to the District Court on 12 July 2022 by the order of Madam
O Justice Au Yeung. O
P P
16. The 1st defendant sought that the costs to be on High Court
scale prior to the date of transfer and this is not disputed by the plaintiff.
Q Q
R R
A A
-7-
B B
C 17. As for application for costs on indemnity basis, firstly, it is C
noted that the 1st defendant has made a Sanctioned Payment on 22 March
D 2024 for a sum of HK$5,000 (Hearing Bundle p.206-209). The plaintiff D
lost his claim so clearly failed to beat the Sanctioned Payment. The 1st
E defendant, at the very least, should be entitled to costs on indemnity basis E
after 19 April 2024 under O.22 r.23(4)(a).
F F
18. Mr. Leung argued that “without prejudice” cover letter for the
G G
Sanctioned Payment somehow has “override and invalidated” the
Sanctioned Payment.
H H
I
19. This letter (Hearing Bundle p.210) stated, inter alia: I
J “Please take notice that if your client accepts the Sanctioned J
Payment, we would apply to the Court for a costs order that your
K client shall pay our client’s costs of the proceedings by invoking the K
otherwise proviso under Order 22 Rule 20(1)…on the ground that
L by accepting the Sanctioned Payment, your client accepts that his L
case on the land boundary is doomed to fail and he should not have
M commenced the present proceedings in the first place.” M
N N
20. It is trite law that when sanctioned payment is accepted, the
prima facie rule is that the plaintiff should be entitled to costs of the action
O O
up to the time when he may accept the sanctioned payment without leave
of Court unless:
P P
Q Q
R R
A A
-8-
B B
a. the defendant discharges the burden of showing exceptional
C circumstances that justify a departure; and C
D b. he has given a prior warning to the plaintiff that he would D
invoke the otherwise proviso.
E E
(per Poon J (as he then was) Etratech Asia-Pacific Ltd v
F F
Leader Printed Circuit Boards Ltd [2013] 2 HKLRD 1184)
G G
21. Thus, Mr. Leung’s argument was again mystifying: this
“without prejudice” letter was the usual and accepted practice of giving a
H H
“prior warning” to the plaintiff that the 1st defendant would apply to court
to invoke the otherwise proviso under Order 22 Rule 20(1). This notice
I I
clearly would not “override or invalidate” the Sanctioned Payment in any
way.
J J
22. Mr. Leung also argued that the Sanctioned Payment only
K K
covered the plaintiff’s claim and not the 1 defendant’s counterclaim. Thus
st
L even if the plaintiff accepted, there would still be a trial on the L
counterclaim. I do not agree: the claim and counterclaim were essentially
M linked: if the claim is dropped, there can be no defence to the counterclaim M
in any case because there is no dispute that the plaintiff has been
N trespassing according to the 2012 Survey Report. N
O 23. As such, if the Sanctioned Payment was accepted, and if the O
1st defendant would then apply to invoke the otherwise proviso, there
P P
would only be arguments on costs. Much costs and time would have been
saved instead of having to embark on a 9-day trial.
Q Q
R R
A A
-9-
B B
C 24. In the Summons, the 1st defendant took matters further in C
seeking that the court should order costs on an indemnity basis for the
D entire proceedings. D
E E
25. The principles governing indemnity costs orders are not in
dispute.
F F
26. In particular, the burden is on the party seeking it to show
G G
“special or unusual feature” which need not be confined to “conduct
lacking in moral probity” etc. but can be conduct that was “unreasonable
H H
to a high degree”. “Unreasonable” here does not mean “merely wrong or
I
misguided in hindsight” or conducts “in pursuit of a weak claim” (see Law I
Yin Pok Bosco, a minor by Lam Po Yee, his mother and next friend v Dr.
J Chan Yee Shing also known as Dr. Chan Yee Shing Alvin [2022] HKCFI J
345).
K K
27. Mr. Tang, the surveyor expert instructed by the plaintiff,
L produced an excessively long report running to almost 200 pages when his L
opinion can be summarised in merely 4 paragraphs in simply declaring that
M the 2006 Survey was a “fair determination of the common boundary” M
whilst failing to address the central issue of dispute (paragraphs 54-56, 75-
N 79 of the Judgment). This is clearly inadequate. Even worst, on the 4th day N
of the trial, Mr. Tang advanced a totally new theory sidestepping his earlier
O O
opinion and the joint statement. The court did not approve of this conduct.
Even if this theory was examined as an academic exercise, it failed
P P
(paragraphs 83-92).
Q Q
R R
A A
- 10 -
B B
28. The plaintiff’s conduct at trial is clearly unreasonable.
C C
29. More importantly, the court finds that the allegations raised
D against the 1st defendant were entirely misconceived (paragraphs 32 to 40 D
of the Judgment):
E E
a. the allegations were unfounded and not supported by any
F F
evidence; and
G G
b. clause 28 of the LSO clearly showed that the 1st defendant was
the wrong party to sue for any dispute in the accuracy of a
H H
survey report.
I I
st
30. Thus, the entire cause of action against the 1 defendant was
J totally baseless. J
K 31. I note that the 2nd defendant has indicated that it is taking a K
neutral position regarding this Summons. However, as stated in paragraph
L 6 above, the allegations against the 2 nd defendant was also entirely L
misconceived.
M M
32. The whole action can be summarised as the plaintiff’s attempt
N to bypass the procedure of the 2nd defendant by requesting the court to act N
as an “alternative forum” to adjudicate on the accuracies of various survey
O O
reports. In doing so, the plaintiff completely failed to acknowledged clause
28 (4) of the LSO in taking action against the proper defendant, i.e. “the
P P
authorised land surveyor personally responsible for the accuracy and
completeness of the land boundary plan signed and certified by him”.
Q Q
R R
A A
- 11 -
B B
C 33. The question is: does such conduct amount to a “special or C
unusual feature” and “conduct to a high degree of unreasonableness”?
D D
34. Paragraph 70 of the Judgment states as much:
E E
“I would question whether P’s legal advisers have drawn their
F F
client’s attention to clauses 28 and 33 of the LSO. If they have, I
wonder how P would see that he should embark on this totally
G G
misconceived action in the wrong forum against the wrong
defendants. In my view, this entire action against both defendants
H H
may amount to an abuse of court process.”
I I
35. Arguably, there cannot be a more ill-conceived or
J
unreasonable action than the current one. It was not a merely weak case. It J
was a hopeless case doomed to fail right from the beginning. The plaintiff’s
K legal advisers should be aware of such. K
L 36. Against this, Mr. Leung’s argument appeared to be that if the L
plaintiff’s claim was so misconceived, the defendants should have applied
M to strike out the action. This is not a valid defence: the defendants may have M
their own considerations and reasons for not taking out such applications
N and it would be unfair and unreasonable to hold that against them. N
O O
37. As such, the court should allow the 1st defendant to recover
the costs of the entire action on an indemnity basis.
P P
Q Q
R R
A A
- 12 -
B B
38. In addition, the 1st defendant also applied for an enhanced
C interest on costs. C
D 39. I accept that the court has discretion to include non- D
compensatory element to the interest award but that the level must be
E proportionate to the circumstances of the case (Wong Giles v Donowho E
Simon Christopher & Anor [2020] HKCFI 1053 and So Sin Ying v JV
F F
Fitness Ltd [2024] 2HKC 596).
G G
40. Given the above considerations, I am of the view that this case
calls for the exercising of such discretion.
H H
I
41. In the 1st Defendant’s skeleton argument, Mr. Leon Ho I
st
wishes to seek enhanced interests from the date that the 1 defendant pays
J his solicitors a costs on account for a sum of HK$1,000,000 (which was on J
20 April 2024, 2 days before the trial commenced) to the date of judgment
K (receipt enclosed at p.221-222 of the Hearing Bundle). K
L 42. This is adopting the “traditional approach” of making the L
calculation of interest for the item of costs from the actual date of payment
M to the date of judgment (Cheung Hon Kin v Chubb Life Insurance Company M
Ltd (formerly known as NEW YORK LIFE INSURANCE WORLDWIDE
N N
LTD and ACE LIFE INSURANCE COMPANY LTD respectively [2024]
HKCFI 3623). This is appropriate given that we are only dealing one item
O O
of payment of costs.
P P
43. I have considered the precedents regarding the appropriate
enhanced interest (the Cheung Hon Kin case and the So Sin Ying case) and
Q Q
R R
A A
- 13 -
B B
I agree with Mr. Ho’s proposal that the interest rate of judgment rate plus
C 5% should be appropriate for the circumstances of this case. C
D The Payment-out Order D
E E
44. Given that the court found for the 1st defendant in the
Judgment, it must follow that the sum of HK$5,000 of the sanctioned
F F
payment made by the 1st defendant on 22 March together with the interest
accrued thereon (if any) be paid out of Court to the 1st defendant forthwith
G G
through his solicitors Messrs. Leung & Lien Solicitors.
H H
Order
I I
45. In conclusion, I will give an order to amend paragraph 97 of
J
the Judgment as stated in paragraph 13 above and I will also give an order J
in terms of paragraphs 2(1), 2(2), 2(3) and 3 of the Summons.
K K
L L
M M
N N
O O
P P
Q Q
R R
A A
- 14 -
B B
46. As for costs, I would order that the costs of and occasioned by
C the Summon be paid by the plaintiff to the 1st defendant forthwith on an C
indemnity basis to be assessed summarily by way of paper disposal. The
D 1st defendant has already submitted a statement of costs for Summary D
Assessment. Accordingly, the plaintiff shall have 14 days from the date of
E this Decision to lodge and serve a summary list of objections. E
F F
G G
H H
I I
(Harold Leong)
District Judge
J J
K K
Mr Kelvin Leung, instructed by Messrs Li, Kwok & Law, for the plaintiff
Mr Leon Ho, instructed by Messrs Leung & Lien, for the 1st defendant
L L
M M
N N
O O
P P
Q Q
R R
CHAU TAT WING, suing in his own capacity and as the sole executor of the estate of WONG TIM LUN, deceased v. WONG KWAI WAN AND ANOTHER
A A
B B
DCCJ 3244/2022
C [2025] HKDC 517 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CIVIL ACTION NO. 3244 OF 2022 E
________________
F BETWEEN F
G CHAU TAT WING, suing in his own capacity and as Plaintiff G
the sole executor of the estate of WONG TIM LUN,
deceased
H H
and
I I
WONG KWAI WAN 1st Defendant
J SECRETARY FOR JUSTICE (SUED FOR AND ON 2nd Defendant J
BEHALF OF DIRECTOR OF LANDS)
K K
Coram: His Honour Judge Harold Leong in Chambers
L
Date of Hearing: 17 January 2025 L
Date of Decision: 31 March 2025
M M
___________________
N N
DECISION
___________________
O O
1. This court has handed down the judgment on 12 December
P P
2024 (“the Judgement”) to dismiss the plaintiff’s claim and the 2 nd
defendant’s counterclaim. The court further made a cost order nisi that the
Q Q
R R
A A
-2-
B B
plaintiff shall pay the costs of this action to the 1st and 2nd defendants to be
C taxed if not agreed with certificates granted for one counsel each to the 1st C
and 2nd defendants.
D D
2. The 1st defendant took out a Summons on 23 December 2024
E (“the Summons”) for, inter alia, the following: E
F
a. An order to vary paragraph 97 of the Judgement (“the F
Judgment Variation Order”);
G G
b. An order to vary the cost order nisi in paragraph 98 of the
H H
Judgment (“the Costs Variation Order”); and
I I
c. An order for the sanctioned payment by the 1st defendant be
paid out (“the Payment-out Order”).
J J
The Judgment Variation Order
K K
L 3. In the current action, the 1st defendant has made a L
counterclaim against the plaintiff (pages 54 - 55 of the Hearing Bundle):
M M
“(1) Delivery of vacant possession of the Area to the 1st defendant;
N N
(2) Mesne profits in respect of the Area at market rate for the period
O from September 2012 until the date of delivery of vacant possession O
of the Area to the 1st defendant;
P P
(3) Interest at such rate and for such period as the court deems fit…”
Q Q
R R
A A
-3-
B B
C 4. The Judgment, under paragraph 97, has ordered that the C
plaintiff’s claim against the 1st and 2nd defendant be dismissed and that the
D 2nd defendant’s counterclaim be also dismissed, but there is no order D
regarding the 1st defendant’s counterclaim. The Judgment has not been
E drawn up as yet. E
F F
5. There is no dispute that this omission in the Judgment is an
obvious mistake. The legal principle for such situation is that:
G G
“Beyond correcting any “slips or omission”, before an order for the
H H
judgment has been drawn up or perfected, the court has a wider
power to rectify mistakes in the judgment…” (Ng Cheuk Hang v
I I
Wams Design Ltd [2022] 1 HKLRD 587)
J J
“The court court’s jurisdiction to reconsider its judgment before its
K
order had been perfected could only be exercised in a case which K
raised considerations, in the interest of justice, which
L were…exceptional. An exceptional case did not have to be uniquely L
special, and “strong reasons” was perhaps an acceptable
M alternative to “exceptional circumstances”…There were, of course, M
cases where an error of fact or law might be too plain for argument,
N and it was better that the error was corrected without imposing on N
the parties the need for an appeal…” (per Woo JA in the court of
O Appeal case of Sun Jianqiang v Trans-Island Limousine Service Ltd O
[2004] 1 HKC 533)
P P
Q Q
R R
A A
-4-
B B
6. Indeed, this court has already considered the 1st defendant’s
C counterclaim when drafting the Judgment. The crux of the Judgment was C
that the 2nd defendant (the Director of Lands) has already rejected the EGS
D Survey and adopted the 2012 Survey as the boundary records it would D
maintain under clause 4(a) of the Land Survey Ordinance, Cap 473 (“the
E LSO”). As such, it is no business of the court to provide an “alternative E
forum” to override such the decision when this was not in form of a Judicial
F F
Review action challenging any procedural defects. Further, under clause
28 of the LSO, the responsibility for the accuracy of the boundaries lies
G G
with the authorized land surveyor, who is not a defendant in this action.
Thus, the claims against both the 1st and 2nd defendants were entirely
H H
misconceived. (paragraphs 32-42, 63-67 of the Judgment)
I I
7. The Judgment, in dismissing the 2 nd defendant’s
counterclaim, also repeats the same position: it is no business of the court
J J
to declare the accuracy of a survey map. Any dispute in such should lie in
a claim of negligence (amongst any other causes of action) against the
K K
authorized land surveyor who produced the disputed survey map
L (paragraph 96 of the Judgment). L
M 8. Given this decision, I find it strange that Mr. Kelvin Leung, M
counsel for the plaintiff, sought to argue that the 1st defendant’s
N counterclaim for vacant possession was somehow unenforceable because N
the court has not determined “where the true common boundary lies”.
O O
9. Further, Mr. Leung argued that, since the Judgment stated that
P P
the court has no jurisdiction as an adjudicator of the accuracy of various
survey reports, the court has not decided whether the 2006 or the 2012
Q Q
R R
A A
-5-
B B
Survey Plan is more accurate. As such, neither Survey Plan has any legal
C effect. C
D 10. I would explain, as I have already done so during the hearing, D
that it is no business of the court to, figuratively, invite the parties to attend
E the site and draw the boundary on the ground with a chalk pen. In my view, E
whilst the court has no jurisdiction to adjudicate which survey plan is
F F
“more accurate”, it, of course, has the jurisdiction to enforce the boundary
according to the survey map currently maintained by the Director of Lands
G G
under clause 4(a) of the LSO.
H H
11. Accordingly, the court finds that the boundary between the
plaintiff’s and the 1st defendant’s land (amongst other boundaries) is
I I
determined by the current records maintained by the Director of Lands, i.e.
J
the 2012 Survey Plan. This showed that the Area as defined in the 1st J
defendant’s Re-Amended Defence is within the 1st defendant’s land. It is
K not disputed that the plaintiff has constructed a wall on the Area so it must K
follow that the court finds for the 1st defendant’s counterclaim for
L trespassing. L
M 12. As for the counterclaim for the mesne profit, the 1st defendant M
has not provided any evidence to support any “market rate” during the trial.
N It is a small area in any case so I would not make any award. N
O O
13. Accordingly, the court will give the order to amend paragraph
97 of the Judgment to read:
P P
Q Q
R R
A A
-6-
B B
I would order that P’s claim against D1 and D2 be dismissed.
C D2’s counterclaim is also dismissed. I would further order that C
P shall, within 28 days of this Judgment, deliver vacant
D possession of the Area as described under paragraph 4(f) of D1’s D
Re-Amended Defence and as shown accordingly in the copy plan
E annexed in the same. E
F F
The Costs Variation Order
G G
14. Under paragraph 2 of the Summons, the 1st defendant applied
for:
H H
(1) The plaintiff do pay the 1st defendant’s cost of the action
before 11 July 2022 at High Court scale;
I I
(2) The plaintiff do pay the 1st defendant’s costs of the action,
J J
including all costs reserved, on indemnity basis with
K
certificate for counsel, to be taxed if not agreed; and K
L (3) The plaintiff do pay the 1st defendant’s enhanced interest L
on costs at the rate of judgment rate plus 5% p.a. until the
M date of Judgment to be taxed if not agreed. M
N 15. This action was commenced in the High Court and was N
transferred to the District Court on 12 July 2022 by the order of Madam
O Justice Au Yeung. O
P P
16. The 1st defendant sought that the costs to be on High Court
scale prior to the date of transfer and this is not disputed by the plaintiff.
Q Q
R R
A A
-7-
B B
C 17. As for application for costs on indemnity basis, firstly, it is C
noted that the 1st defendant has made a Sanctioned Payment on 22 March
D 2024 for a sum of HK$5,000 (Hearing Bundle p.206-209). The plaintiff D
lost his claim so clearly failed to beat the Sanctioned Payment. The 1st
E defendant, at the very least, should be entitled to costs on indemnity basis E
after 19 April 2024 under O.22 r.23(4)(a).
F F
18. Mr. Leung argued that “without prejudice” cover letter for the
G G
Sanctioned Payment somehow has “override and invalidated” the
Sanctioned Payment.
H H
I
19. This letter (Hearing Bundle p.210) stated, inter alia: I
J “Please take notice that if your client accepts the Sanctioned J
Payment, we would apply to the Court for a costs order that your
K client shall pay our client’s costs of the proceedings by invoking the K
otherwise proviso under Order 22 Rule 20(1)…on the ground that
L by accepting the Sanctioned Payment, your client accepts that his L
case on the land boundary is doomed to fail and he should not have
M commenced the present proceedings in the first place.” M
N N
20. It is trite law that when sanctioned payment is accepted, the
prima facie rule is that the plaintiff should be entitled to costs of the action
O O
up to the time when he may accept the sanctioned payment without leave
of Court unless:
P P
Q Q
R R
A A
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B B
a. the defendant discharges the burden of showing exceptional
C circumstances that justify a departure; and C
D b. he has given a prior warning to the plaintiff that he would D
invoke the otherwise proviso.
E E
(per Poon J (as he then was) Etratech Asia-Pacific Ltd v
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Leader Printed Circuit Boards Ltd [2013] 2 HKLRD 1184)
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21. Thus, Mr. Leung’s argument was again mystifying: this
“without prejudice” letter was the usual and accepted practice of giving a
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“prior warning” to the plaintiff that the 1st defendant would apply to court
to invoke the otherwise proviso under Order 22 Rule 20(1). This notice
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clearly would not “override or invalidate” the Sanctioned Payment in any
way.
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22. Mr. Leung also argued that the Sanctioned Payment only
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covered the plaintiff’s claim and not the 1 defendant’s counterclaim. Thus
st
L even if the plaintiff accepted, there would still be a trial on the L
counterclaim. I do not agree: the claim and counterclaim were essentially
M linked: if the claim is dropped, there can be no defence to the counterclaim M
in any case because there is no dispute that the plaintiff has been
N trespassing according to the 2012 Survey Report. N
O 23. As such, if the Sanctioned Payment was accepted, and if the O
1st defendant would then apply to invoke the otherwise proviso, there
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would only be arguments on costs. Much costs and time would have been
saved instead of having to embark on a 9-day trial.
Q Q
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A A
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B B
C 24. In the Summons, the 1st defendant took matters further in C
seeking that the court should order costs on an indemnity basis for the
D entire proceedings. D
E E
25. The principles governing indemnity costs orders are not in
dispute.
F F
26. In particular, the burden is on the party seeking it to show
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“special or unusual feature” which need not be confined to “conduct
lacking in moral probity” etc. but can be conduct that was “unreasonable
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to a high degree”. “Unreasonable” here does not mean “merely wrong or
I
misguided in hindsight” or conducts “in pursuit of a weak claim” (see Law I
Yin Pok Bosco, a minor by Lam Po Yee, his mother and next friend v Dr.
J Chan Yee Shing also known as Dr. Chan Yee Shing Alvin [2022] HKCFI J
345).
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27. Mr. Tang, the surveyor expert instructed by the plaintiff,
L produced an excessively long report running to almost 200 pages when his L
opinion can be summarised in merely 4 paragraphs in simply declaring that
M the 2006 Survey was a “fair determination of the common boundary” M
whilst failing to address the central issue of dispute (paragraphs 54-56, 75-
N 79 of the Judgment). This is clearly inadequate. Even worst, on the 4th day N
of the trial, Mr. Tang advanced a totally new theory sidestepping his earlier
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opinion and the joint statement. The court did not approve of this conduct.
Even if this theory was examined as an academic exercise, it failed
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(paragraphs 83-92).
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A A
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B B
28. The plaintiff’s conduct at trial is clearly unreasonable.
C C
29. More importantly, the court finds that the allegations raised
D against the 1st defendant were entirely misconceived (paragraphs 32 to 40 D
of the Judgment):
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a. the allegations were unfounded and not supported by any
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evidence; and
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b. clause 28 of the LSO clearly showed that the 1st defendant was
the wrong party to sue for any dispute in the accuracy of a
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survey report.
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st
30. Thus, the entire cause of action against the 1 defendant was
J totally baseless. J
K 31. I note that the 2nd defendant has indicated that it is taking a K
neutral position regarding this Summons. However, as stated in paragraph
L 6 above, the allegations against the 2 nd defendant was also entirely L
misconceived.
M M
32. The whole action can be summarised as the plaintiff’s attempt
N to bypass the procedure of the 2nd defendant by requesting the court to act N
as an “alternative forum” to adjudicate on the accuracies of various survey
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reports. In doing so, the plaintiff completely failed to acknowledged clause
28 (4) of the LSO in taking action against the proper defendant, i.e. “the
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authorised land surveyor personally responsible for the accuracy and
completeness of the land boundary plan signed and certified by him”.
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A A
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B B
C 33. The question is: does such conduct amount to a “special or C
unusual feature” and “conduct to a high degree of unreasonableness”?
D D
34. Paragraph 70 of the Judgment states as much:
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“I would question whether P’s legal advisers have drawn their
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client’s attention to clauses 28 and 33 of the LSO. If they have, I
wonder how P would see that he should embark on this totally
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misconceived action in the wrong forum against the wrong
defendants. In my view, this entire action against both defendants
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may amount to an abuse of court process.”
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35. Arguably, there cannot be a more ill-conceived or
J
unreasonable action than the current one. It was not a merely weak case. It J
was a hopeless case doomed to fail right from the beginning. The plaintiff’s
K legal advisers should be aware of such. K
L 36. Against this, Mr. Leung’s argument appeared to be that if the L
plaintiff’s claim was so misconceived, the defendants should have applied
M to strike out the action. This is not a valid defence: the defendants may have M
their own considerations and reasons for not taking out such applications
N and it would be unfair and unreasonable to hold that against them. N
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37. As such, the court should allow the 1st defendant to recover
the costs of the entire action on an indemnity basis.
P P
Q Q
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A A
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B B
38. In addition, the 1st defendant also applied for an enhanced
C interest on costs. C
D 39. I accept that the court has discretion to include non- D
compensatory element to the interest award but that the level must be
E proportionate to the circumstances of the case (Wong Giles v Donowho E
Simon Christopher & Anor [2020] HKCFI 1053 and So Sin Ying v JV
F F
Fitness Ltd [2024] 2HKC 596).
G G
40. Given the above considerations, I am of the view that this case
calls for the exercising of such discretion.
H H
I
41. In the 1st Defendant’s skeleton argument, Mr. Leon Ho I
st
wishes to seek enhanced interests from the date that the 1 defendant pays
J his solicitors a costs on account for a sum of HK$1,000,000 (which was on J
20 April 2024, 2 days before the trial commenced) to the date of judgment
K (receipt enclosed at p.221-222 of the Hearing Bundle). K
L 42. This is adopting the “traditional approach” of making the L
calculation of interest for the item of costs from the actual date of payment
M to the date of judgment (Cheung Hon Kin v Chubb Life Insurance Company M
Ltd (formerly known as NEW YORK LIFE INSURANCE WORLDWIDE
N N
LTD and ACE LIFE INSURANCE COMPANY LTD respectively [2024]
HKCFI 3623). This is appropriate given that we are only dealing one item
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of payment of costs.
P P
43. I have considered the precedents regarding the appropriate
enhanced interest (the Cheung Hon Kin case and the So Sin Ying case) and
Q Q
R R
A A
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B B
I agree with Mr. Ho’s proposal that the interest rate of judgment rate plus
C 5% should be appropriate for the circumstances of this case. C
D The Payment-out Order D
E E
44. Given that the court found for the 1st defendant in the
Judgment, it must follow that the sum of HK$5,000 of the sanctioned
F F
payment made by the 1st defendant on 22 March together with the interest
accrued thereon (if any) be paid out of Court to the 1st defendant forthwith
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through his solicitors Messrs. Leung & Lien Solicitors.
H H
Order
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45. In conclusion, I will give an order to amend paragraph 97 of
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the Judgment as stated in paragraph 13 above and I will also give an order J
in terms of paragraphs 2(1), 2(2), 2(3) and 3 of the Summons.
K K
L L
M M
N N
O O
P P
Q Q
R R
A A
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B B
46. As for costs, I would order that the costs of and occasioned by
C the Summon be paid by the plaintiff to the 1st defendant forthwith on an C
indemnity basis to be assessed summarily by way of paper disposal. The
D 1st defendant has already submitted a statement of costs for Summary D
Assessment. Accordingly, the plaintiff shall have 14 days from the date of
E this Decision to lodge and serve a summary list of objections. E
F F
G G
H H
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(Harold Leong)
District Judge
J J
K K
Mr Kelvin Leung, instructed by Messrs Li, Kwok & Law, for the plaintiff
Mr Leon Ho, instructed by Messrs Leung & Lien, for the 1st defendant
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M M
N N
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P P
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