Beijing Hantong Yuzhi Convention Centre Ltd v. Lao Yuan Yi

CACV 163/2014

CIVIL APPEAL NO. 163 OF 2014

(ON APPEAL FROM HCA NO. 1208 OF 2010)

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D E C I S I O N
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Hon Cheung JA (giving Decision of the Court) :

1.By a Notice of Motion dated 21 September 2015 the defendant applies for leave to appeal against our judgment of 24 August 2015. The Notice of Motion states that leave is applied for under the ‘or otherwise’ ground.

2.The defendant now asks for the dismissal of his application and the parties agree to have the matter dealt with on paper.  The defendant refers to the practice of this Court that it will not grant leave on the ‘or otherwise’ ground but will leave this issue to be decided by the Court of Final Appeal itself.

3.Adhering to this practice, we will not grant leave to the defendant and will dismiss his application.

4.The only issue that concerns us is that of costs.  The defendant had by an open letter dated 23 September 2015 invited the plaintiff to consent to the dismissal of his application so that the defendant could proceed to the Court of Final Appeal to apply for leave.  The plaintiff rejected the offer on the following day.  These two letters were included in the present application.  Apparently there were also other ‘without prejudice’ correspondences by the parties on this topic which were not produced before us.  The defendant now asks for the costs of his application be to the plaintiff save that all costs incurred on or after 23 September 2015 be paid by the plaintiff to the defendant with certificate for two counsel. 

5.The plaintiff explains why it was not prepared to consent to the dismissal which included, amongst other things, the fact that notwithstanding the statement in the Notice of Motion that the application is on the ‘or otherwise’ ground, it also refers to a matter of great general or public importance.  Further, it also referred to a decision of this Court which granted leave on the ‘or otherwise’ ground.  It expressed concern of having the application dismissed by consent without this Court having a chance to consider the merits of the application.

6.We are not prepared to say that the plaintiff has proceeded unreasonably in refusing to agree to a dismissal of the application. Accordingly the plaintiff is entitled to the costs of the application to be taxed if not agreed on a party and party basis.  We consider one counsel is suffice for this application.

Written submissions by Mr Nelson Miu and Ms Ann Lui, instructed by P. H. Chin & Company, for the plaintiff

Written submissions by Mr Bernard Man SC and Mr James Man, instructed by T. H. Koo & Associates, for the defendant