Fok Chun Yue Benjamin v. Fok Chun Wan Ian and Others
Read the full judgment text of CACV 13/2014 on BabelCite. This Court of Appeal judgment was delivered on 20 January 2016 before Lam VP, Kwan JA, Barma JA.
Civil procedure – costs – appeal – hostile litigation – costs to follow the event – indemnity basis – innocent parties – costs below – set aside – joint and several liability – The court considered costs of the appeal and costs below in a family estate dispute. The main protagonists were first family siblings Ben, Nora, Pat, Ian and Tim. The court held in favour of Ben, Nora and Pat on key issues in the appeal. Costs of the appeal ordered to follow the event: Ian and Tim jointly and severally pay costs of Ben, Nora and Pat on party and party basis. The Mother and 2nd and 3rd Family siblings were innocent parties; Ian and Tim ordered to pay their costs on indemnity basis. Costs order of Poon J against Ben and Nora set aside. In the court below, no clear winner among the four main protagonists; each ordered to bear own costs. Ian, Tim, Ben and Nora jointly and severally bear costs of the Mother and 2nd and 3rd Family siblings below on indemnity basis. Costs of the Aunt deferred due to her death.
Legal issues: Costs of appeal · Costs of innocent parties in appeal · Costs below
Outcome: Costs orders made for the appeal and below. Ian and Tim jointly and severally pay costs of Ben, Nora and Pat in the appeal. Ian and Tim jointly and severally pay costs of the Mother and 2nd and 3rd Family siblings in the appeal. Poon J's costs order against Ben and Nora set aside. Each of Ben, Nora, Ian and Tim bears own costs below. Ian, Tim, Ben and Nora jointly and severally bear costs of the Mother and 2nd and 3rd Family siblings below.
Cites 1 case
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CACV 13/2014, IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NOS. 13, 16 and 17 OF 2014 (ON APPEAL FROM HCA NO. 2155 OF 2011) ________________________
________________________ (Heard together)
_______________ JUDGMENT _______________ Hon Lam VP (giving the Judgment of the Court): 1.We handed down our judgment on 12 February 2015. Since then parties filed submissions on costs of the appeal and costs below. In the meantime, time was given to the first family siblings (Ian, Tim, Ben, Nora and Pat) to try to resolve their differences by mediation. 2.Unfortunately, despite efforts by those siblings and the very experienced mediator, and despite several extensions of time being granted by the court for that purpose, no agreement was reached. It was acknowledged that the disputes would have to be addressed by way of fresh proceedings and at a hearing on 10 December 2015, the court granted an extension up to 31 January 2016 for the fresh proceedings to be commenced. 3.In light of that, this court has to address the submissions on costs before us. 4.By a letter of 9 December 2015 from the solicitors for the Aunt (the 2nd Defendant), the court and other parties were informed of the demise of the Aunt on 25 November 2015. The solicitors have no further instructions in the matter. Up to now, there has not been any application under Order 15 Rule 7 for a carry-on order to be made. In light of that, we shall defer the matter on costs with regard to the Aunt in the appeal and in the court below, whether costs in her favour or costs against her. 5.As between the other parties, we shall first consider the costs of the appeal. 6.We have read the submissions of the parties. The main protagonists in the appeal were Ben, Nora, Pat, Ian and Tim. As between them, the appeal (and the proceedings below) is clearly hostile litigation. In our main judgment, we held in favour of Ben, Nora and Pat on the key issues in the appeal which was resisted by Ian and Tim. We do not think the incidence of costs of the appeal should depend on the outcome of the fresh proceedings. The terms of the stay have been finally determined by us (accepting the submissions of Ben, Nora and Pat) and it is not apt to draw an analogy with the costs of an Order 14 appeal. Notwithstanding what had happened in the court below, we do not find any cogent basis for departing from the general rule of costs to follow the event. We therefore order that Ian and Tim shall jointly and severally pay the costs of Ben, Nora and Pat. Such costs are to be taxed on party and party basis if not agreed, with certificates for 2 counsel. 7.As regards the position of the Mother (the 14th Defendant) and those in the 2nd and 3rd Families (the 6th to 13th, 15th and 16th Defendants), they are innocent parties unfortunately dragged into this dispute amongst the first family siblings. They should not be out of pocket in terms of costs. The costs should not be borne, as suggested by counsel for Ian, by the first family portion of the estate since we consider this piece of litigation as hostile litigation amongst the first family members and there is no reason why Ben, Nora and Pat should have to share in the payment of such costs. We order Ian and Tim to pay jointly and severally the costs of the Mother, and the siblings in the 2nd and 3rd families in the appeal. Such costs are to be taxed on indemnity basis if not agreed. 8.In respect of costs below, in light of our conclusions in the main judgment, the costs order of Poon J against Ben and Nora has to be set aside. 9.In the court below, the main protagonists were Ben, Nora, Ian and Tim, Pat adopted a neutral stance. Pat did not appeal against the order as to costs made by Poon J in respect of her costs. We shall leave it as it is. 10.At the same time, taking account of the ultimate outcome in this appeal, we do not consider any one of the four main protagonists has emerged as the successful party or parties. Many of the points taken at that stage for Ben were rightly rejected. In the present circumstances, we regard it as fair as between them to order each of them to bear their own costs below. 11.As for the Mother and the 2nd and 3rd Family siblings, again we see no reason why they should not be compensated for their costs incurred below. We order that Ian, Tim, Ben and Nora shall jointly and severally bear their costs below, such costs are to be taxed on indemnity basis if not agreed, with certificate for 2 counsel for the 2nd and 3rd Family siblings. 12.The above costs order in the appeal shall include the costs of the applications for costs.
Mr Clifford Smith SC, Mr Richard Todd and Ms Bonnie Y K Cheng, instructed by Norton Rose Fulbright Hong Kong, for the plaintiff (Appellant in CACV 13/2014) Mr Denis Chang SC, Mr Ronny Wong SC and Mr Nelson Miu, instructed by Hobson & Ma, for the 1st defendant Mr Wong Chao Wai Brian, instructed by Peter C Wong, Chow & Chow, for the 2nd defendant Mr Victor Joffe and Mr Kerby Lau, instructed by Hampton, Winter & Glynn, for the 3rd defendant (Appellant in CACV 16/2014) Mr Victor Dawes SC and Mr Wilson Leung, instructed by Wilkinson & Grist, for the 4th defendant Mr Benjamin Yu SC and Ms Eva Sit, instructed by Clifford Chance, for the 5th defendant (Appellant in CACV 17/2014) Mr Samuel Wong, instructed by Sit, Fung, Kwong & Shum, for the 6th to 13th, 15th and 16th defendants Mr Leon Ho, instructed by Fred Kan & Co, for the 14th defendant |
Cases cited in this judgment
Further hearings and rulings under CACV 13/2014