Nishimatsu-costain-china Harbour Joint Venture v. Ip Kwan & Co (A Firm)

CACV000021A/2000

CACV 21/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 21 OF 2000

(ON APPEAL FROM HCA 19448/1999)

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Coram: Hon Leong JA, Rogers JA and Ribeiro JA in Court

Date of Hearing: 22 June 2000

Date of Judgment: 22 June 2000

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J U D G M E N T

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Hon Rogers JA :

1. This is the judgment of the court.

2. This is an application under an order nisi made after a hearing which took place in March of this year. This court handed down its judgment on 26 May. In that judgment, this court partially allowed the appeal of the defendant and removed three injunctions which had been granted in the court below. However, the remaining injunction was the primary matter about which the argument had turned, both in this court and in the court below.

3. The defendant objects to the order nisi. The order was that the defendant should have 50% of its costs in this court but the costs in the court below would remain payable by the defendant. The defendant refers to two letters which had been written on the eve of the first hearing of the injunction application in the court below. Those letters were headed "without prejudice save as to costs". An offer of an undertaking was made which was to all intents the same as the injunction which this court has left in place. The letters left open the question of costs. As a result of that, those letters are ineffective as Calderbank letters because they did not make an offer of costs to which, by that stage, the plaintiff would have been entitled had it been offered everything to which it was entitled.

4. This court considers that it should not disturb the order as to costs. Almost the whole argument in this case turned upon the injunction which has now remained on foot. The other three injunctions hardly featured in the argument and certainly only featured at the end of the judgment.

5. The whole point of the case was, as outlined by leading counsel who appeared on the appeal on behalf of the appellant, that the appellant wished to have a decision on the matter because as recorded at page 10 of the judgment, the defendant still challenged the decision of the Deputy Judge granting the injunction and that it was not simply a matter of academic interest, although the solicitor was not intending to do what was prohibited by the injunction : there were questions of costs and professional conduct. As such the matter was argued fully for a day because the appellant wanted a decision on the very point upon which it lost.

6. The ultimate effect of the order as to costs is that the defendant has to pay the costs in the court below but receives 50% of its costs here. That, in our view, is a just result given the overall outcome of this case namely first of all, the imposition of the injunction which this court left and the removal of the three injunctions which were removed in this court.

7. Therefore, the order nisi as to costs will not be disturbed.

Representation:

Mr Paul Carolan, instructed by Messrs Masons, for the Plaintiff

Miss Selina Lau, instructed by Messrs Ip, Kwan & Co. for the Defendant