Jeanny Helena Franslay v. Sy Chin Mong Stephen and Others
Read the full judgment text of HCCT 38/2018 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 2 September 2019 before Hon Anthony Chan J in Chambers.
Costs — Arbitration enforcement — Late withdrawal of appeals — Reasonableness of instructing counsel at late stage — Plaintiff instructed counsel on the same day when appeals were effectively abandoned by 2nd and 3rd Defendants. Court found applicants responsible for late withdrawal and that costs should be borne by them. However, counsel instruction costs were considered unreasonable and excluded from recoverable costs. Result: Applicants ordered to pay costs of appeals, excluding counsel instruction fees.
Legal issues: Costs liability upon late withdrawal of application
Outcome: The appeals were withdrawn with leave granted; 2nd and 3rd Defendants to pay costs excluding costs of instructing counsel.
Cited by 4 cases
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HCCT 38/2018 [2019] HKCFI 2330 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTRUCTION AND ARBITRATION PROCEEDINGS NO 38 OF 2018 ___________________
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________________ D E C I S I O N ________________ 1.The appeals have been withdrawn this morning and the court has already given leave for the applicants (2nd and 3rd Defendants) to do so. The only outstanding matter is one of costs. There cannot be any serious argument that generally a party who applies, especially at a very late stage, to withdraw his application has to bear the costs of the other side insofar as that application is concerned. The arguments here boil down to whether it is justified for the respondent (Plaintiff) to instruct counsel at a very late stage to deal with these matters. 2.First and foremost, I believe that the applicants have themselves to blame when it came to withdrawing their applications at a very late stage. 3.On the other hand, it is reasonably clear that by 28 August 2019, the very day when counsel was instructed by the Plaintiff, the position was reasonably clear that the appeals were not going to be pursued and the only outstanding argument was one of costs. 4.I have to bear in mind also that the suggestion by the applicants at the material time was that they would like to put an end to the appeals and have their costs exposure limited. Therefore, it must have been reasonably clear by the 28 August 2019 that the argument could only be confined to costs. 5.I find that in the circumstances it is a little harsh and unreasonable for the Plaintiff to have instructed counsel to deal with the matter, and I therefore agree with the applicants that the costs should not include the costs of instructing counsel. I make an order that costs of and occasioned by these appeals, with the exception of the costs of instructing counsel, be paid by the 2nd and 3rd Defendants.
Mr Kenny CP Lin, instructed by Myra Li & Co, for the Plaintiff The 2nd Defendant appeared in person The 3rd Defendant appeared in person |
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