Ip Pui Lam Arthur and Another v. Alan Chung Wah Tang and Another

CACV 214/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 214 OF 2016

(ON APPEAL FROM HCMP NO. 450 OF 2016)
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BETWEEN

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DECISION ON COSTS

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Hon Cheung JA (giving Decision of the Court):

1.This Court made an order nisi that the defendants are to pay the plaintiffs 80% of the costs of the appeal and below to be taxed on an indemnity basis. The defendants seek to vary the order so that they will only need to pay 20% of the costs of the appeal and below.

2.The defendants’ argument is that in the Court below, the plaintiffs’ case was that the defendants had committed five breaches of the March 2015 order and To J found the defendants had committed four breaches of the order.  On appeal, this Court found that the defendants had only committed one breach.  The defendants contended that the five allegations of breach constituted five separate charges and hence constituting five events.  Applying the principle that costs following the event, they should not be ordered to pay 80% of the plaintiffs’ costs.  Even if the various breaches are considered merely as issues, they should still not be ordered to pay 80% of the plaintiffs’ costs.

3.We disagree.  The issue is whether the defendants were in contempt of court.  The Judge found they were and on appeal by the defendants we uphold this view although not on the entire basis as decided by the Judge.  The only reason why we gave the plaintiffs 80% of their costs and not the whole is because we found the committal order is no longer appropriate.

4.The 80% costs order of the costs below for the plaintiffs is the appropriate order having considered all the circumstances of the case.  The only matter that needs to be changed is that in the appeal, the plaintiffs’ application to adduce new evidence was not successful and their argument in the amended respondent’s notice was not required to be decided.  To reflect this, the costs order for the appeal should be revised so that the defendants will bear 70% of the costs of the plaintiffs on an indemnity basis.  It was our intention to grant certificate for two counsel and we will so order.

Mr David Chen, instructed by Li, Wong, Lam & W.I. Cheung, for the plaintiffs

Mr Patrick Siu, instructed by ONC Lawyers, for the defendants