China Technology Solar Power Holdings Ltd v Zeng Xiangyi
Court of First Instance
High Court Action No 3017 of 2016
Recorder Eugene Fung SC in Chambers
24 December 2018, 3 January 2019

Civil procedure — costs — perfected costs order — variation on ground order failed to provide for immediate taxation — whether court had no power to vary order by reason of functus officio — whether variation warranted under “slip rule” — whether court intended taxation forthwith — Rules of the High Court (Cap. 4A, Sub.Leg.) O. 20 r. 11

D3 applied to vary a costs order against P (“Order”) under the “slip rule” in O. 20 r. 11 of the Rules of the High Court (Cap. 4A, Sub.Leg.) asking for the insertion of the words “and be paid forthwith” at the end of the Order (the “Application”). The Master dismissed the Application, holding that as the Order had been perfected, the Court was functus officio. D3 appealed.

Held, allowing the appeal, that:

1) Since a correction under the “slip rule” was to reflect what the court had in fact already decided, the rule could operate “at any time” and did not involve the court acting when functus officio. Accordingly, insofar as the Master had relied on the functus officio doctrine alone to dismiss the Application, she erred in doing so. As the Master did not say anything about the operation of the “slip rule”, the Court considered that she had not implicitly ruled that she had no intention to make a forthwith taxation order by dismissing the Application (Winston Camera & Radio Co Ltd v Combi (Singapore) Pte Ltd [1988] HKC 156, Man Ping Nam v Man Fong Hang (No 2) 10 HKCFAR 140 applied). (See paras. 17–19.)

2) In light of the contemporaneous correspondence between the parties and the transcript of the hearing, the Master in all probabilities intended to allow D3’s costs of the striking-out summons to be taxed immediately when she made the Order. As the Order did not reflect this, the “slip rule” should be invoked to correct the error (Adam & Harvey Ltd v International Maritime Supplies Co Ltd [1967] 1 WLR 445, Allied Collection Agencies Ltd v Wood[1981] 3 All ER 176, Wing Wo Engineering Ltd v Tyco Engineering & Construction (Hong Kong) Ltd (CACV 1120/2000), [2002] HKEC 1332) applied). (See paras. 23–25.)

Appeal

This was an appeal by the third defendant against the order of Master Phillis Loh dismissing the third defendant’s application to invoke the “slip rule” in respect of a costs order. The facts are set out in the judgment.

Jurisdictions: 

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