A A

HCCT 37/2016
B B
IN THE HIGH COURT OF THE

C
HONG KONG SPECIAL ADMINISTRATIVE REGION C
COURT OF FIRST INSTANCE
D D
CONSTRUCTION AND ARBITRATION PROCEEDINGS
NO 37 OF 2016
E ___________ E

BETWEEN
F F

WIN WIN WAY CONSTRUCTION CO., LIMITED Plaintiff

G G

and
H H

I
JUDEA CONSTRUCTION COMPANY LIMITED 1st Defendant I

NG SUI KEUNG 2nd Defendant

J J
___________
K K

Before: Deputy High Court Judge Anson Wong SC in Court

L L
Date of Hearing: 13 September 2017
M Date of Decision: 21 September 2017 M

N _____________ N

O
DECISION O
_____________
P P

A. Introduction
Q Q

1. The dispute of this action relates to a construction project

R R
known as “Proposed Residential Development at Nos 197 – 203, Castle
S Peak Road, Cheung Sha Wan, Kowloon” (the “Project”). S

T T

U U

V V
 - 2 -

A A
2. The Employer of the Project is Profit Share Corporation
B Limited (the “Employer”). The plaintiff is the main contractor of the B

Project. The 1st defendant is the plaintiff’s sub-contractor. The

C C
2nd defendant is a director and ultimate indirect shareholder of the
D 1st defendant. D

E E
3. It is not in dispute that the 1st defendant encountered financial

F
difficulty at some stage of the Project. As a result, the parties entered F
into an arrangement contained in a written sub-contract dated 5 October
G G
2014 signed between the plaintiff, the 1st defendant and the 2nd defendant
H (the “Sub-Contract”), whereby the plaintiff would provide financial H
st
support to the 1 defendant by way of making direct payments to the
I I
sub-sub-contractors.
J J
4. For the present purposes, the material clauses contained in
K the Sub-Contract are as follows: K

L (a) Clause 2: L

“ For each interim and final payment, [the plaintiff] will deduct
M 7% of the contract income from source as their management M
fee. The remaining will be used to provide direct payment to
N
sub-contractors. All sub-contractor payments should be N
authorized by [the 1st defendant] before payment being made by
[the plaintiff]. After deduction of all expenses and necessary
O payments, the remaining sum should be paid directly to [the O
1st defendant]. If the project income is less than the necessary
P expenses and subcontract payments, [the plaintiff] will provide P
finance to settle all these payments. This ‘in-advance’ amount
provided by [the plaintiff] should be fully repaid in next interim
Q Q
payment by the Employer.”

R R
(b) Clause 3:
“ Within fourteen days after the final account settlement, [the
S S
plaintiff] and [the 1st defendant] will reach settle between
themselves.”
T T

U U

V V
 - 3 -

A A
(c) Clause 4:
B “ In case the project income ([the 1st defendant’s] entitlement B
portion, ie 93% of total project income from the Employer) is
less than all necessary expenses and subcontractor payments
C C
paid by [the plaintiff] directly to subcontractor, [the 1st defendant]
should re-pay [the plaintiff] all outstanding amount within
D 14 days after servant demand note from [the plaintiff] to [the D
1st defendant].”
E E
(d) Clause 5:
F
“ [The 1st defendant] and [the 2nd defendant] should provide F
unconditional joint and several guarantee for all outstanding
amount due from [the 1st defendant] to [the plaintiff].”
G G

H 5. In this action, the plaintiff sues the 1st and 2nd defendants H

for the sum of $9,914,006.94 under the Sub-Contract. The said sum of
I I
$9,914,006.94 represents the difference between (a) the payments and
J expenses in the total sum of $92,913,869.46 paid by the plaintiff on J

behalf of the 1st defendant, and (b) 93% of the project income of
K K
HK$89,247,164.00 certified under Interim Payment Certificate No 24
L (“IPC-24”) of the Project receivable by the 1st defendant as of L

30 September 2015.
M M

N 6. It is the 1st and 2nd defendants’ case that the plaintiff’s claim N

is premature since, on the proper construction of the Sub-Contract, their

O O
liability to pay (if any) would not arise unless and until the conclusion of
P the final account between the plaintiff and the Employer. P

Q Q
7. Further, the 1st and 2nd defendants dispute certain items of

R those expenses which are said to have been paid by the plaintiff, and they R
also allege that the 1st defendant had paid some expenses which should
S S
have been paid by the plaintiff under the Sub-Contract.
T T

U U

V V
 - 4 -

A A
B. Procedural history
B B
8. This action was commenced on 9 December 2015 under
C HCA 2920/2015. On 18 July 2016, the parties by consent transferred C

this action to the Construction and Arbitration List under the present action
D D
number. Pursuant to the Order made by 7 October 2016, this action was
E set down for trial on 17 November 2016 with 7 days reserved, and the E

trial was subsequently fixed to commence on 13 September 2017.

F F

G
9. On 8 February 2017, the plaintiff issued a notice of arbitration G
to commence an arbitral proceedings against the Employer (the “Arbitral
H H
Proceedings”) which seeks to resolve the disputes between the plaintiff
I and the Employer in relation to the main contract, including (but not I

limited to) the disputes relating to the plaintiff’s entitlement to certain

J J
extension of time, the Employer’s entitlement to liquidated damages, and
K the plaintiff’s liability in respect of defective works. K

L 10. On 26 June 2017, by a “without prejudice save as to costs” L

letter from its solicitors1, the plaintiff for the first time informed the 1st and
M M
nd
2 defendants of the existence of the Arbitral Proceedings and the fact
N N
that the tribunal for such proceedings would soon be formally constituted.

O
On this basis, the plaintiff proposed to adjourn this action sine die pending O
resolution of the account for the main contract in the Arbitral Proceedings.
P P

11. On 3 July 2016, an arbitrator was jointly appointed by the

Q Q
Hong Kong Institute of Architects and the Hong Kong Institute of
R Surveyors to hear and determine the Arbitral Proceedings. R

S S

1
T As stated below, this hearing only deals with the question of costs. All “without prejudice T
save as to costs” letters exchanged between the parties are included in the hearing bundles
without any objection from either side.
U U

V V
 - 5 -

A A
12. On 11 July 2017, by a “without prejudice save as to costs”
B letter from their solicitors, the 1st and 2nd defendants rejected the plaintiff’s B

proposal, stating that their position had always been that the disputes in
C C
this action could only be resolved after the conclusion of the final account
D of the main contract. D

E E
13. On 7 August 2017, the plaintiff took out a summons asking

F
for an order that this action be stayed sine die with liberty to restore F
pending determination of the final account for the main contract works
G G
in the Arbitral Proceedings between the plaintiff and the Employer (the
H “Stay Summons”), which was fixed to be heard before Anthony Chan J H

at the pre-trial review on 9 August 2017 (the “PTR”).

I I

14. At the PTR, the 1st and 2nd defendants opposed the Stay
J J
Summons. Accordingly, Anthony Chan J gave directions to the parties to
K file evidence on the Stay Summons and adjourned the same to be heard K

L
on the first day of the trial. Pursuant to such directions, the 1st and 2nd L
defendants filed their affirmation in opposition to the Stay Summons on
M M
16 August 2017.

N N
15. On 16 August 2017, the plaintiff issued another summons
O returnable on the first day of the trial, seeking an order that leave be O

granted to the plaintiff to discontinue this action in the event of the Court
P P
dismissing the Stay Summons (the “Discontinuance Summons”). On
Q the face of the Discontinuance Summons, it is quite clear that the plaintiff’s Q

then position was that it would only seek leave to discontinue this action
R R
if the Court was to refuse its Stay Summons.
S S

T T

U U

V V
 - 6 -

A A
16. On the same day, by an “open” letter from its solicitors, the
B plaintiff urged the 1st and 2nd defendants to withhold any further preparation B

of the trial in view of the fact that the trial of this action would either be
C C
stayed or discontinued.
D D
17. On 1 September 2017, the plaintiff’s solicitors informed
E E
this Court that the plaintiff had decided not to pursue the Stay Summons

F
and would seek leave to withdraw the same with costs to the 1st and 2nd F
defendants, to be taxed if not agreed.
G G

18. On 5 September 2017, the 1st and 2nd defendants’ solicitors

H H
wrote to this Court stating that they would not oppose the plaintiff’s
I application to withdraw the Stay Summons or to discontinue this action, I

but that they would like to make submissions in respect of the costs order
J J
sought under the Discontinuance Summons.
K K

C. Issues for determination

L L

19. In view of the position taken by the parties, I granted leave to

M M
the plaintiff to withdraw the Stay Summons and to discontinue this action
N at the beginning of the hearing. N

O O
20. Originally, there was dispute between the parties as to the

P terms of the condition that this Court should impose on the bringing of P

subsequent action by the plaintiff. At the hearing, Ms Wong, counsel

Q Q
for the 1st and 2nd defendants, very sensibly agreed to the formulation of
R the condition proposed by Mr Chong and Mr Yan, counsel for the plaintiff, R

with one minor amendment in relating to its wording. I, therefore, order

S S
that unless with leave of the Court, no proceedings be instituted by the
T plaintiff on the same or substantially the same issues raised in the T

Statement of Claim.
U U

V V
 - 7 -

A A
21. What remains to be determined by this Court is the question
B of costs. B

C 22. Regarding the Stay Summons, there is no dispute that the C

D
plaintiff should bear costs. There is, however, disagreement as to whether D
such costs should be taxed on indemnity basis.
E E

23. As to the Discontinuance Summons:

F F
(a) The plaintiff’s position is that save for (i) costs order
G G
previously made and (ii) costs of and occasioned by the
H preparation of an account between the parties, the plaintiff H

shall bear the costs of the action (including the counsel brief
I I
for the trial) up to the date of the PTR (ie 9 August 2017).
J Thereafter, the 1st and 2nd defendants shall bear the plaintiff’s J

costs.
K K
st nd
(b) As far as the 1 and 2 defendants are concerned, they agree
L L
that any costs order to be made should not disturb the costs

M
order previously made. They, however, disagree with the M
plaintiff’s suggestion that the costs relating to the preparation
N N
of an account between the parties should be carved out.

O Further, they also contend that the plaintiff should bear the O
costs of the entire action, not just up to the date of the PTR.
P P
Furthermore, they also ask the plaintiff to bear such costs on
Q indemnity basis. Q

R 24. I will deal with the differences between the parties on the R

question of costs in the ensuing sections.

S S

T T

U U

V V
 - 8 -

A A
D. Costs after the PTR
B 25. The general rule is that a plaintiff discontinuing a claim B

should pay the defendant’s costs. That said, the Court has complete
C C
discretion in dealing with the issue of costs and the guiding principle is
D fairness and justice in the circumstances. To persuade the court to depart D

E
from the general rule, the minimum a plaintiff has to do is to show that the E
discontinuance is for reasons other than an acknowledgement of defeat or
F F
likely defeat. However, costs may still be ordered against the plaintiff

G
where justice requires the defendant should recover his costs even when G
the plaintiff has discontinued the proceedings for reasons other than the
H H
certainty of defeat: Coqueen Co Ltd v Chui Wai Kwan & Ors
I (HCMP 438/2010, 8 December 2015) per To J at paras 35 – 44. I

J 26. As noted above, Mr Chong on behalf of the plaintiff does not J

dispute that the plaintiff should bear the costs of the action in accordance
K K
with the general rule. In fact, Mr Chong confirms that the plaintiff
L does not seek to argue that it would succeed if the trial were to proceed. L

Mr Chong, however, submits that the general rule should not apply after
M M
the PTR on 9 August 2017, as a result of the development at that hearing.
N N
27. Mr Chong argues that at the PTR, Anthony Chan J raised the
O O
issue of the oncoming trial being academic. In light of such indication

P from the learned Judge, the 1st and 2nd defendants should have agreed to P
the immediate disposal of the action (whether by stay of the entire action
Q Q
or by adjournment of the trial) such that the question of costs could have
R been dealt with forthwith by Anthony Chan J at the PTR, and that further R

costs after the PTR could have been saved. Mr Chong emphasizes that
S S
such matters justify this Court ordering the 1st and 2nd defendants to bear
T the plaintiff’s costs after the PTR under Order 62, rule 7 of the Rules of T

the High Court (“RHC”).

U U

V V
 - 9 -

A A
28. With respect, I am unable to accept Mr Chong’s submissions.
B B
29. The only application then placed before Anthony Chan J at
C the PTR was the Stay Summons. As fairly acknowledged by Mr Chong C

D
during the course of his submission, there is a huge difference between a D
stay and a discontinuance of an action. A stay does not bring an end to
E E
an action; rather it leaves the action hanging over the head of the opposite

F
party. Given that the 1st and 2nd defendants faced what they perceived to F
be a premature action, they were in my view fully entitled to insist on it
G G
being brought to an end, rather than simply being stayed or adjourned.
H H
30. Further, it is in my view wholly unjustified for Mr Chong to
I lay the blame on the 1st and 2nd defendants for failing to secure the speedy I

resolution of the matter. No matter what was fallen from the bench at
J J
the PTR, the plaintiff is the only party who can decide whether it should
K or should not continue the prosecution of the action. The Court cannot K

L
force the plaintiff to discontinue the action, nor can the 1st and 2nd L
defendants. At the hearing, Mr Chong confirmed that at the PTR, the
M M
plaintiff did not offer to discontinue this action against the 1st and 2nd

N
defendants, nor did it offer to bear the 1st and 2nd defendants’ costs of N
st
this action. In these circumstances, I simply cannot see what the 1 and
O O
2nd defendants could have reasonably done to save costs and court time.

P P
31. Furthermore, it appears to me that this hearing is in any event
Q unavoidable in view of the position previously taken by the plaintiff. In Q

the Discontinuance Summons, the plaintiff simply asked for the costs of
R R
the action (including the Discontinuance Summons) be provided for. By
S a letter dated 22 August 2017, the 1st and 2nd defendants’ solicitors asked S

the plaintiff to clarify who should bear the costs of the action. By a letter
T T
in response dated 25 August 2017, the plaintiff’s solicitors simply stated
U U

V V
 - 10 -

A A
that the plaintiff would take issue on who should be entitled to costs and
B the extent of the same. Viewed in this light, there is every reason for the B

1st and 2nd defendants to prepare for this hearing in order to deal with the
C C
question of costs.
D D
32. For the above reasons, I am unable to see any justification for
E E
this Court to depart from the general rule that a plaintiff discontinuing his

F
claim should bear the defendant’s costs, even after the PTR on 9 August F
2017.
G G

33. That said, I agree with Mr Chong’s more limited argument

H H
that the 1st and 2nd defendants should not be allowed to hold the plaintiff
I liable for costs incurred by them after 16 August 2016 for the preparation I

of the trial.
J J

K 34. On 16 August 2016, the plaintiff by the issue of the K

Discontinuance Summons made it clear that it had no intention to pursue

L L
this action any further. Also, on the same day, the plaintiff’s solicitors
M issued a letter confirming that the plaintiff would not proceed with the trial M

and urging the 1st and 2nd defendant to withhold preparation for the trial
N N
in order to save costs. In the circumstances, after 16 August 2017, it
O would be unnecessary for the 1st and 2nd defendants to incur further costs O

for the preparation of the trial after 16 August 2017.

P P

Q 35. At the hearing, Ms Wong confirmed that the 1st and 2nd Q

defendants had ceased to incur further costs in connection with the

R R
preparation of the trial after 16 August 2017, and that they would have
S no objection to this Court making clear in the costs order that any costs S

incurred by her clients for the preparation of the trial after 16 August 2017
T T
would be disallowed.
U U

V V
 - 11 -

A A
E. Costs for preparing accounts
B B
36. Notwithstanding that Mr Chong concedes that the plaintiff
C has to bear the defendant’s costs of the action (at least up to 9 August 2017), C

he submits that the disbursement costs on account between the plaintiff

D D
st
and the 1 defendant should be carved out from the other costs incurred
E E
in this action.

F F
37. Mr Chong argues that in the present case, the main contract
G works were sub-contracted by the plaintiff to the 1st defendant in their G

entirety. The 1st defendant has a duty to submit a final account to the
H H
plaintiff under the Sub-Contract, and that such account would be the same
I as the final account to be submitted by the plaintiff to the Employer under I

the main contract. Hence, despite the discontinuance of the action, the
J J
costs incurred by the parties in preparing the account would not be wasted,
K and that it would lead to absurdity if the plaintiff were required to bear K

such costs under the costs order made in this action.

L L

M 38. With respect, I cannot accept Mr Chong’s submission. M

N N
39. As rightly pointed out by Ms Wong, the issues involved in

O
the disputes between the plaintiff and the 1st defendant under the Sub- O
Contract are very different from the disputes between the plaintiff and the
P P
Employer under the main contract. The disputes between the parties in

Q this action concern the payments to the sub-sub-contractors as well as the Q

parties’ respective entitlements under the Sub-Contract. Such disputes
R R
are different from the disputes between the plaintiff and the Employer in
S relation to the final account. S

T T

U U

V V
 - 12 -

A A
40. Further, Ms Wong also rightly points out that the subject
B matter of this action relates to IPC-24, which is one of the many interim B

payment certificates issued during the course of the Project. By their

C C
nature, such interim certificates would be superseded by other subsequent
D interim certificates and ultimately by the final account. Thus, whatever D

disputes the parties may have in relation to IPC-24 in this action, such
E E
disputes may cease to be of any relevance by the time when the final
F accounts are prepared. F

G G
41. I would also add this observation: Since there is only very
H scant material about the Arbitral Proceedings placed before me, I am H

unable to assess or form any view on Mr Chong’s submission on this point.

I I
Given that it is the plaintiff who asks this Court to exercise its discretion
J to depart from the general rule by carving out those disbursement costs J

incurred in relation to the preparation of account, the burden must be

K K
rested upon the plaintiff to satisfy this Court that it is just and fair to do so.
L In my judgment, the plaintiff has plainly failed to discharge that burden. L

M M
42. Mr Chong also argues that this action is one necessarily

N
involving the taking of an account, and he seeks to pray in aid of RHC N
Order 43, rule 1(1) to support his contention that the costs incurred in the
O O
accounting exercise should be carved out from the costs order in favour

P of the 1st and 2nd defendants. P

Q 43. With respect, I am unable to see the relevance of RHC Q

Order 43, rule 1(1) to the question of costs. Order 43, rule 1(1) is not a
R R
rule concerning costs. The characterization of the plaintiff’s claim as an
S action for account, which I in any event do not agree, would not provide a S

rational basis for this Court to depart from the general rule that a plaintiff
T T
seeking to discontinue his claim has to bear the defendant’s costs.
U U

V V
 - 13 -

A A
44. For the above reasons, I am unable to accede to Mr Chong’s
B request to carve out the disbursement costs relating to the preparation of B

the account between the plaintiff and the 1st defendant from such costs
C C
order made in favour of the 1st and 2nd defendants.
D D

F. Indemnity costs
E E
45. Ms Wong asks this Court to order costs on indemnity basis.
F F

46. She refers to the decisions of the Court of Final Appeal in

G G
Town Planning Board v Society for Protection of the Harbour Ltd (No 2)
H (2004) 7 HKCFAR 114 at paras 16 – 18 and emphasizes that whilst the H

successful party has to show some “special or unusual feature” in order

I I
to justify indemnity costs, the Court’s discretion is not to be fettered or
J circumscribed beyond the requirement that indemnity costs must be J

“appropriate”. Further, in the exercise of its discretion, the Court can

K K
consider any matter relating to the litigation and the parties’ conduct in it,
L and also to the circumstances leading to the litigation. L

M M
47. On this point, Mr Chong submits that the Court’s jurisdiction
N to award indemnity costs is not engaged since the plaintiff has discontinued N

this action and, hence, there is no “successful party”. Mr Chong has not
O O
provided any authority to support this proposition. I cannot see why a
P defendant is not a “successful party” when the plaintiff has withdrawn P

or discontinued a claim. Further, I am also of the view that Mr Chong’s

Q Q
proposition is against common sense in that it is tantamount to a complete
R bar to the Court ordering indemnity costs against a party withdrawing or R

discontinuing a claim. This cannot be right.

S S

T 48. Hence, I am of the view that I do have jurisdiction to order T

indemnity costs. The question is whether or not I should exercise my

U U

V V
 - 14 -

A A
discretion to make such order in light of the guidance laid down by the
B Court of Final Appeal in Town Planning Board. B

C 49. Ms Wong submits that the plaintiff’s claim is unmeritorious. C

D
This is because it is clear from the Sub-Contract that the parties’ liabilities D
only arise after the conclusion of the final account, and that the plaintiff’s
E E
claim in this action is premature.

F F
50. Further, Ms Wong submits that this action has been brought
G and prosecuted in a vexatious manner to cause trouble to the 1st and 2nd G

defendants. In this regard, she points to the following conduct and

H H
circumstances relating to this action:
I I
(a) The plaintiff was fully aware of the 1st defendant’s financial
J difficulty. Despite such knowledge, the plaintiff issued J

statutory demands in November 2015 and later brought this

K K
action in December 2015 against the 1st and 2nd defendants.
L L
(b) Before the commencement of this action, the 1st and 2nd

M
defendants’ former solicitors had written a letter to the M
plaintiff on 4 December 2015 informing them that the claim
N N
would be premature since, pursuant to the terms of the Sub-

O Contract, the parties’ liabilities would not arise until after O

the conclusion of the final account.
P P
(c) Notwithstanding that the plaintiff’s case against the 1st and
Q 2nd defendant is weak, the plaintiff still insisted on bringing Q

this action. Yet, the plaintiff itself had from time to time
R R
delayed in taking steps in the prosecution of this action.
S In particular, the plaintiff only took out the Stay Summons, S

and subsequently the Discontinuance Summons, when the

T T
case was on the verge of trial.
U U

V V
 - 15 -

A A
51. At the heart of Ms Wong’s submission is that this action
B was brought and prosecuted by the plaintiff for the purpose of exploiting B

the financial vulnerability of the 1st and 2nd defendants.

C C

D
52. In my view, one very important element of Ms Wong’s D
submission is the strength of the defendants’ case or, put it differently,
E E
the lack of merits of the plaintiff’s case.

F F
53. Whilst I can see the force of Ms Wong’s submission that
G upon the proper construction of the Sub-Contract, the plaintiff’s claim is G

premature since no liability would arise until after the conclusion of the
H H
final account, I am unable to say that the defendants must have prevailed
I on this point had there been a trial proper. I

J J
54. It is now well established by the Court of Final Appeal in
K Fully Profit (Asia) Ltd v Secretary for Justice (2013) 16 HKCFAR 351 K

at para 15 that context is of great importance in construing the meaning of

L L
a contractual term. In the absence of a trial proper in which the context
M surrounding the conclusion of the Sub-Contract would be fully investigated, M

I am unable to say with certainty that the 1st and 2nd defendants must
N N
prevail on the point that the plaintiff’s claim is premature. At the end of
O the day, the Sub-Contract does not contain any express prohibition against O

the parties seeking payments from the other side before the conclusion
P P
of the final account.
Q Q

55. In this regard, I accept Mr Chong’s submission that if this is

R R
really an open-and-shut case, the 1st and 2nd defendants could have applied
S to strike out the plaintiff’s claim, or to determine the issue concerning S

the construction of the Sub-Contract under RHC Order 14A, or to have

T T
the issue tried as a preliminary issue. I fully appreciate that the 1st and
U U

V V
 - 16 -

A A
2nd defendants are not obliged to choose these options. However, the
B fact that the 1st and 2nd defendants did not explore these possibilities to B

bring an end to what they perceived to be a plainly hopeless case militates

C C
against their suggestion that the plaintiff’s case is so unmeritorious to
D the extent justifying an order of indemnity costs. D

E E
56. As to Ms Wong’s contention that this action has been brought

F
and prosecuted for the purpose of exploiting the defendants’ financial F
vulnerability, given my view on the merits of the case, I do not think
G G
there are sufficient primary facts before me justifying the drawing of
H such serious inference. H

I 57. The plaintiff might have a weak case. It, however, does not I

follow that this action was brought by the plaintiff with ulterior motives.
J J
st nd
Moreover, as pointed out above, if the 1 and 2 defendants are so
K adamant that this action is hopeless, they could have stopped the plaintiff K

L
by making appropriate interlocutory application. L

M 58. For the present purposes, I am prepared to accept Ms Wong’s M

submission that there might be certain degree of tardiness on the part of

N N
the plaintiff in the prosecution of this action. This, without more, is in
O my view insufficient to ground an inference that this action is a tactical O

manoeuver engineered by the plaintiff to exploit the defendants’ financial

P P
vulnerability, nor is this on its own sufficient to justify this Court ordering
Q costs on indemnity basis. Q

R R
59. Having considered all the relevant circumstances, I do not
S think it is appropriate for me to order costs on indemnity basis. S

T T

U U

V V
 - 17 -

A A
G. Disposal
B 60. For the above reasons, I make the following orders: B

C (a) Leave be granted to the plaintiff to withdraw the Stay C

Summons;
D D
(b) Costs of the Stay Summons be paid by the plaintiff to the
E 1st and 2nd defendants, to be taxed if not agreed; E

F (c) Leave be granted to the plaintiff to discontinue this action; F

(d) Unless with leave of the Court, no proceedings be instituted

G G
by the plaintiff on the same or substantially the same issues
H raised in the Statement of Claim filed in this action; H

I
(e) Without prejudice to any costs order previously made by the I
Court, costs of this action (including the counsel brief for the
J J
trial) be paid by the plaintiff to the 1st and 2nd defendants, to

K be taxed if not agreed, save that any further costs incurred K

by the 1st and 2nd defendants after 16 August 2017 for the
L L
preparation of the trial should be disallowed.
M M
61. Regarding the costs of the hearing, I make an order nisi that
N the costs of the hearing be paid by the plaintiff to the 1st and 2nd defendants, N

to be taxed if not agreed. I consider that the 1st and 2nd defendants are
O O
the parties who are substantially successful at the hearing, and that they
P have to come before me in order to get a costs order in their favour in P

view of the position taken by the plaintiff.

Q Q

R R

S S

T T

U U

V V
 - 18 -

A A
62. Lastly, I wish to thank counsel for their assistance.
B B

C C

(Anson Wong SC)

D Deputy High Court Judge D

E E

F F

G G

H H
Mr K M Chong and Mr Yan Kwok Wing, instructed by K M Lai & Li,
for the plaintiff
I I
Ms Catherine Wong, instructed by Cordells Rompotis, for the 1st and 2nd
J defendants J

K K

L L

M M

N N

O O

P P

Q Q

R R

S S

T T

U U

V V