Deputy High Court Judge MK Liu in Chambers (by Paper Disposal)
Date of Written Submissions by the Defendant:
29 July 2024
Date of Written Submissions by the Plaintiff:
5 August 2024
Date of Reply Submissions by the Defendant:
12 August 2024
Date of Decision:
20 August 2024
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D E C I S I O N
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Introduction
1.
On 31 May 2024, I handed down the judgment after trial in these proceedings (“the Judgment”)
[1]
, in which I dismissed P’s claim against D and made a costs order in favour of D at [188] of the Judgment (“the Costs Order”). On 11 June 2024, D took out a summons (“D’s Summons”) for an order that the Costs Order be varied as follows:
(1) P do pay D’s costs of these proceedings (including costs reserved), with a certificate for two counsel (covering the fees of senior counsel and the fees of senior junior counsel) on a party-to-party basis up to 24 October 2017 and thereafter on an indemnity basis, to be taxed if not agreed; and
(2) P do pay enhanced interest at 2% per annum above the judgment rate (or at such rate as the Court shall deem just) on D’s costs and disbursements (to be taxed on an indemnity basis if not agreed) from 25 October 2017 to 31 May 2024, and thereafter at judgment rate until full payment of the same.
2.
In the same summons, D further seeks an order that a sum paid into court by D by way of Sanctioned Payment dated 26 September 2017 (“the Sanctioned Payment”) together with all interest accrued on the said sum be forthwith paid out of court to D through D’s solicitors.
3.
On 12 June 2024, I directed that D’s Summons be determined by me on paper without an oral hearing, and the order made in the Judgment (“the 31 May 2024 Order”) not be sealed until the determination of D’s Summons.
4.
In this application, D is represented by Ms Elizabeth Cheung and Mr Edward Tsui, and P is represented by Mr Raymond Chu. The parties have filed their respective affirmations concerning D’s Summons, and have lodged their respective written submissions pursuant to my directions, and I have duly considered the same.
The parties’ respective submissions
5.
Ms Cheung for D submits that:
(1) The Costs Order in substance is an order
nisi
, and hence the Court may vary the same. Although the Court has heard the parties on the question of costs at the final submissions hearing on 30 April 2024, the Court could not have seen (and was in fact not) aware of all relevant matters on the issue of costs, particularly the existence of the Sanctioned Payment.
(2) Alternatively, if the Costs Order is not intended to be an order
nisi
, D invites the Court to exercise its discretion to vary the same, as the order has not been sealed or perfected. The Court has the power to do so, and whether the Court should exercise that power is a matter of
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