Cheung Wah Nin and Others v. The Land Registry and Another

HCMP 3337/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3337 OF 2015

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DECISION ON COSTS

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1.The plaintiffs obtained a declaration in their favour as a result of my judgment handed down on 7 October 2016. It is fair to say that the question whether the Deeds of Licence were registrable was the primary dispute between the parties throughout the correspondence and the earlier affirmations. The plaintiffs have succeeded on that question and obtained relief and the starting point is that costs should follow the event.

2.It must however be recalled that the plaintiffs had also brought a claim for damages, which plainly was not merely an additional or alternative issue or argument supporting the declaration sought but a separate claim for different relief.  The claim for damages was abandoned but only at the hearing when all the costs of preparing for it had been incurred.  While the plaintiffs might have incurred little separate costs in relation to the claim for damages, it was understandably an important issue for the defendants on which they had undoubtedly incurred some costs.  Thus some of the late affidavit evidence and many points in the defendants’ skeleton argument related primarily to this claim.

3.Taking a broadbrush approach I consider it nevertheless appropriate to make a global order for costs in favour of the plaintiffs, but the quantum should be reduced to reflect its failure on the damages claim.  Looking at all the circumstances I would make an order that the defendants pay two‑thirds of the plaintiffs’ costs of the proceedings.

4.The plaintiffs also ask for costs to be awarded on an indemnity basis. I see no warrant for a higher basis of taxation.  The defendants took a position on the legal effect of the Deeds of Licence that was, in my view, wrong, and steadfastly maintained it throughout the correspondence.  But that is not a reason here to order indemnity costs.  It has to be borne in mind that the plaintiffs chose to call the documents “licences” and to stipulate that they should not be construed as creating any tenancy.

5.Given the extent to which the parties have each prevailed on the question of costs, I shall make no order as to the costs of the written submissions on costs.

6.In the result, there will be an order that the defendants do pay the plaintiffs two‑thirds of the costs of the proceedings (excluding the written submissions on costs), to be taxed on the party and party basis if not agreed.

Written Submissions by Mr Tony Ko, instructed by George YC Mok & Co, for the plaintiffs

Written Submissions by Mr Johnny Mok SC and Mr Jenkin Suen, instructed by Department of Justice, for the 1^st and 2^nd defendants