How to File a Counterclaim in Hong Kong
EasyDebt Editorial
The moment you open that envelope, the first reaction is usually panic, and the second is anger. Panic, because you are now a defendant. Anger, because the other side is the one who owes you — the contractor walked off halfway, half the goods were substandard, the service was never properly delivered — and yet he is the one who filed first.
This happens more often than people expect, and Hong Kong's Small Claims Tribunal has a specific route for it: the counterclaim. The idea is simple. You are not merely denying his claim; you are claiming money back from him, and both sets of figures get settled in the same hearing. This article covers what separates a counterclaim from a defence, when it is worth filing, how to lodge it, what happens when the amount exceeds the Tribunal's limit, and the point most people miss — that a counterclaim sometimes improves your position and sometimes makes life harder. It is drawn from the Hong Kong Judiciary's Small Claims Tribunal guidance and the Small Claims Tribunal Ordinance (Cap. 338).
If you have not yet worked out the basics of responding to a summons, start with Received a Small Claims Tribunal Summons? Complete Defendant's Guide; this article deals with the counterclaim step specifically.
Counterclaim versus defence
Plenty of people treat "defence" and "counterclaim" as the same thing, file only one document, and quietly lose the chance to recover their own losses. They do two different jobs.
The Defence is your shield. In it you state whether you dispute liability and/or the amount claimed, and if so on what grounds. The Judiciary's guidance is specific: you must respond point by point to every allegation made in the claim. Those three words matter — a vague, sweeping denial reads like an admission.
The Form of Counterclaim is your sword. According to the Judiciary, if a defendant wants not only to defend the claim but also to bring an independent claim against the claimant based on a cause of action or facts connected with the claim, he must file a Form of Counterclaim. Note "connected" — a counterclaim is not an invitation to reopen every past grievance; it has to attach to the matter he sued you over.
So the correct move is both: lodge the Defence with the Registry and serve a copy on the claimant, and separately lodge the Form of Counterclaim with the Registry. Filing only the counterclaim leaves his allegations unanswered.
Is a counterclaim the same as a set-off?
Not quite. A set-off reduces what you owe by what he owes you. A counterclaim is an independent claim — even if the original claim fails, the counterclaim can still succeed and be awarded. In practice the two often travel together, and the Tribunal's form treats it as a claim in its own right.
When a counterclaim is worth filing
Not every defended case suits a counterclaim. Three tests decide it: is it connected, can you calculate it, and can you collect it.
Connected. Your loss must arise from facts related to his claim. The classic example is renovation: the contractor sues for the unpaid balance while you had to hire someone else to fix defective work. That remedial cost is connected. A dispute from three years ago over something else entirely may well not be.
Calculable. The form itself requires you to set out how the amount is calculated, and to state whether it includes interest or expenses. This is where people underestimate the work: "he caused me enormous loss" is not a number. You need quotations, receipts, repair invoices, the contract for the redone work. The approach in how to prepare evidence and documents applies here and applies harder — on the counterclaim, the party making the allegation is you.
Collectable. Even a win does not put money in your hand. If the other side has no assets, a successful counterclaim may still recover nothing, which is covered in how to enforce a judgment after you win.
A practical rule: if your loss clearly exceeds what he is claiming, a counterclaim is usually worth it. If your loss is only slightly less than his claim, arguing the amount down in your Defence may be enough without paying a second filing fee.
How to file and what it costs
This is the step people get wrong most often, and the cost of getting it wrong is usually lost time.
First, it must be lodged in person. The Judiciary's guidance states that a defendant wishing to counterclaim must complete the Form of Counterclaim and lodge it with the Registry personally or through a representative — the Tribunal does not accept a Form of Counterclaim by post, fax, email or any other means. A separate section repeats that the Tribunal generally does not accept documents by email at all, including claims, counterclaims, defences and witness statements. Emailing it across to save a trip means you have not filed it.
Second, there is a separate fee. A counterclaim is not bundled in free. The fee is banded by the amount counterclaimed, on the same scale as starting a claim (fees are set by subsidiary legislation and may change — check the Judiciary's current fee table before you file):
| Amount counterclaimed (HK$) | Filing fee (HK$) |
|---|---|
| Not exceeding 5,000 | 20 |
| Over 5,000 up to 25,000 | 40 |
| Over 25,000 up to 50,000 | 70 |
| Over 50,000 up to 75,000 | 120 |
Third, you serve the copy yourself. This differs from starting a claim: the claim is posted to defendants by the Bailiff's office, but once a counterclaim is filed, the defendant must post a copy to the claimant himself. Assuming the court will serve it for you is a common and costly mistake.
Fourth, what the form asks for. The Form of Counterclaim is short but specific: the amount counterclaimed, sufficient particulars of the grounds to inform the claimant, the manner in which the amount is calculated and whether it includes interest or expenses, then a signature from each defendant or his representative. The form's own notes add that the counterclaim shall be heard together with the claim unless the Tribunal directs otherwise.
All the forms — Defence, Form of Counterclaim, and the Notice of Discontinuance of Counterclaim you may need later — are on the Judiciary's Small Claims Tribunal forms page. If you would rather have someone walk through the paperwork with you and check that the figures hold up, see what the filing assistance service actually covers.
When should you file it?
The guidance says a Defence should be lodged as early as possible before the brief mention, with the Form of Counterclaim lodged alongside it. In practice the brief mention is also where the adjudicator gives procedural directions — the guidance notes that where the parties fail to settle, the Tribunal will direct the defendant to file a defence and counterclaim (if any), and the claimant to file a reply and a defence to the counterclaim (if any). So you do not permanently lose the chance by not having decided yet, but the earlier you file, the stronger your footing on the day.
When the counterclaim exceeds the limit
This is the section worth remembering, because the consequence runs against most people's instinct.
The Tribunal handles monetary claims not exceeding HK$75,000. So what happens if your counterclaim is HK$120,000? The instinct is that the Tribunal keeps his claim and you go off to the District Court with yours. That is not what happens.
The Judiciary's guidance is explicit: if the counterclaim raised by the defendant at the brief mention or later exceeds or falls outside the Tribunal's jurisdiction, the adjudicator will transfer the whole case, including both the claim and the counterclaim, to the appropriate court or tribunal.
Your counterclaim takes the original small claim with it. That cuts both ways:
- The upside: if your loss genuinely dwarfs his claim, moving everything to a forum that can award the full amount is the only real fix.
- The catch: you also leave behind the environment that makes the Tribunal attractive — no legal representation, low fees, informal procedure. District Court or Court of First Instance litigation is a different order of cost and complexity, and the losing party ordinarily bears the other side's costs.
So the arithmetic is not only "how much did I lose"; it is a decision about where you want to fight. The Ordinance contains dedicated provisions on jurisdiction over counterclaims, so if your figure sits near the limit it is worth reading the relevant provisions of Cap. 338 directly, or asking the Registry before you lodge anything.
Worth noting too: the Tribunal does not hear certain categories at all, including labour disputes, recovery of possession of land, maintenance, and defamation or slander. A counterclaim in one of those categories triggers the same transfer — in a tenancy dispute, for instance, recovering arrears and recovering possession are dealt with in two entirely different forums.
How the adjudicator weighs both
The Judiciary puts it plainly: the adjudicator will deal with the interrelated claim and counterclaim together at the hearing, and the Form of Counterclaim's notes provide that the counterclaim shall be heard together with the claim unless the Tribunal directs otherwise.
In practice that means several things.
The burden follows the assertion. The guidance states that generally the party making an allegation bears the burden of proof, though the adjudicator may at any time direct the other party to produce evidence. On his claim, he must prove you owe him. On your counterclaim, you must prove he owes you. You cannot win a counterclaim by denial — denial only wins the defence.
Both sets of figures sit on the same table. This is the real power of a counterclaim: the adjudicator does not order you to pay 60,000 and leave you to start a fresh action to chase 80,000, but examines both in one hearing. It changes the negotiating temperature too — many cases settle at the brief mention with the investigation officer's help, and a counterclaim with clean arithmetic and receipts behind it is the most concrete leverage you can bring.
The procedural obligations run both ways. The adjudicator gives directions on exchanging witness statements and documents, and a party who fails to comply may have judgment entered against it and/or be ordered to pay the other side's costs. A counterclaim makes you both a defendant and a claiming party, so you are on the hook for both sets of deadlines.
Amending or withdrawing needs leave. Before judgment you may amend your counterclaim, but only with the adjudicator's approval, after which you must attend the Registry in person to make the amendment and pay the prescribed fee. Likewise, discontinuing a counterclaim after the brief mention requires the adjudicator's approval first. That is precisely why getting the amount and the grounds right at the outset is cheaper than fixing them later.
On presenting your case and handling cross-examination, practical tips for representing yourself go further; lawyers generally cannot represent parties at the Tribunal, so those skills matter just as much to a defendant.
What to weigh before you file
Having made the case for it, the other side deserves an honest hearing.
It lengthens the fight. A case you only had to defend now requires you to prove things, prepare witness statements and face cross-examination. If the counterclaim is small and the evidence thin, the time and stress may not be proportionate.
It can move the venue. As above, exceeding the limit transfers the entire case. That is a decision to make deliberately, not to discover afterwards.
A weak counterclaim undermines your credibility. No guidance says this, but it is very real: a counterclaim with fuzzy figures that barely connects to the original claim invites the adjudicator to discount everything else you say. A counterclaim should be the item you are most confident about, not a bargaining posture.
Legal costs are not recoverable. The Judiciary states that even if you succeed, you cannot recover the legal fees you paid in a small claims case. In this forum, money spent organising evidence generally does more work than money spent on legal opinions.
Set against all that: if your loss is connected, calculable and documented, then not counterclaiming is the genuine loss — his case is going to be heard anyway, and you would be giving up the one chance to recover your own money without starting a second action. In our experience that is the decision people most often regret.
FAQ
The guidance indicates the adjudicator gives directions at the brief mention for filing a defence and counterclaim (if any), so filing a Defence does not permanently close the door. But a counterclaim must be lodged in person and carries its own fee, and the later you raise it, the less time you have to calculate and evidence it. Deciding before the brief mention is the safer course.
Yes. The Judiciary's fee table puts "filing a claim or counterclaim" on the same bands: HK$20 up to HK$5,000; HK$40 above HK$5,000 up to HK$25,000; HK$70 above HK$25,000 up to HK$50,000; and HK$120 above HK$50,000 up to HK$75,000.
No. The guidance states it must be lodged with the Registry in person or by a representative, and that post, fax and email are not accepted; the Tribunal generally does not accept documents by email. Remember too that you must post the copy to the claimant yourself.
A counterclaim is an independent claim and does not simply vanish because the original claim does. That said, there is a set procedure for either party to discontinue before judgment, and discontinuing a counterclaim after the brief mention requires the adjudicator's approval. If this comes up, ask the Registry early which form and steps apply.
Yes, and it is worth checking early. The limitation period depends on the nature and cause of the claim and is governed by the Limitation Ordinance (Cap. 347); there is no single one-size-fits-all figure. If the events behind your counterclaim are some years old, confirm the period that applies to your own situation rather than assuming a general number.
EasyDebt is not a law firm. This article is general procedural information only, does not constitute legal advice, and individual cases are governed by Hong Kong law and the Tribunal's rulings.
Further Reading
This article is for general reference only and does not constitute legal advice. We are not a law firm; please evaluate your individual case based on specific circumstances.