Lau Koon Ying Matthew, As the Executor of the Estate of Lau Yiu Wing, Deceased (“The Deceased”) v. Lau Tark Wing and Another
Read the full judgment text of CACV 508/2020 on BabelCite. This Court of Appeal judgment was delivered on 1 November 2021 before Cheung JA, Au JA, G Lam JA.
Civil procedure – costs – Court of Appeal – decision on costs following substantive judgment – mixed success on appeal – apportionment of costs between parties – costs of appeals in the Court of Appeal and before the judge – whether global costs order appropriate across three related appeals – Sale Proceeds (HK$1.08 million, interest from September 1992) and Rental Proceeds (HK$3.96 million, interest from January 1997) – plaintiff succeeded on Rental Proceeds but failed on Sale Proceeds – Court of Appeal's substantive judgment dated 15 September 2021 dismissing appeal in CACV 508/2020 and allowing appeals in CACV 509 and 510/2020 – judge's earlier costs order nisi requiring plaintiff to pay 75% of defendants' costs of appeals before her, varied to 50% – costs of written submissions on costs treated as part of costs of appeals in this court – broad-brush approach to costs apportionment – plaintiff awarded two-thirds of costs of appeals in this court, with certificate for two counsel – plaintiff to pay 50% of defendants' costs of appeals before the judge, with certificate for two counsel.
Legal issues: Apportionment of costs of appeals in this court · Apportionment of costs of appeals before the judge
Outcome: The plaintiff was awarded two-thirds of the costs of the appeals in the Court of Appeal; the plaintiff's liability to pay the defendants' costs of the appeals before the judge was reduced from 75% to 50%.
Cites 3 cases
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CACV 508, 509 & 510/2020 [2021] HKCA 1632 CACV 508/2020 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 508 OF 2020 (ON APPEAL FROM HCAP NO 23 OF 2013) ____________
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____________ CACV 509/2020 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 509 OF 2020 (ON APPEAL FROM HCA NO 2305 OF 2012) ____________
____________ CACV 510/2020 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 510 OF 2020 (ON APPEAL FROM HCA NO 2306 OF 2012) ____________
____________ (Heard together) Before: Hon Cheung, Au and G Lam JJA in Court Date of Written Submissions: 28 September and 5 and 12 October 2021 Date of Decision on Costs: 1 November 2021 ___________________ D E C I S I O N O N C O S T S ___________________ Hon G Lam JA (giving the Decision on Costs of the Court): 1.In our judgment dated 15 September 2021,[1] we dismissed the plaintiff’s appeal in CACV 508 of 2020, declining to award compound interest in relation to the Sale Proceeds, but allowed the plaintiff’s appeals in CACV 509 and 510 of 2020, thereby awarding compound interest in relation to the Rental Proceeds. This is our decision on the costs of the appeals in this court and before the judge, based on the written submissions of the parties. 2.Strictly speaking, since the parties to the three appeals are not identical, there may be a reason for making a separate costs order in each case in light of the different outcomes. However, as both sides have submitted that it would be appropriate to make a global costs order covering all three appeals, this is the approach that we adopt. 3.Pursuant to the judge’s decision and order on costs dated 23 December 2020 varying her previous costs order nisi,[2] the plaintiff had to pay 75% of the defendants’ costs of the appeals before the judge with certificate for two counsel. This order, in the judge’s view, reflected more closely the actual time and effort spent on the issue of compound interest, on which the defendants were successful before the judge, as compared to the other two areas of contention, namely, the commencement date for the accrual of interest and deduction of the construction costs of the houses. 4.The plaintiff’s submission is that (1) the defendants should be required to pay 70% of the plaintiff’s costs of the appeals in this court with certificate for two counsel; and (2) the plaintiff should not be required to pay more than 20% of the defendants’ costs of the appeals before the judge. 5.The defendants’ position is that (1) for the appeals in this court there should be no order as to costs; and (2) the judge’s order on the costs of the appeals before her should be maintained. 6.In relation to the appeals in this court, we do not accept the defendants’ contention that there should be no order as to costs. Taking the appeals as a composite whole, the plaintiff had to bring the appeals in order to overturn the judge’s refusal to award compound interest, and eventually succeeded in relation to Rental Proceeds. He should be entitled to at least part of the costs of the appeals. The defendants themselves take the same approach in relation to the costs of the appeals before the judge. 7.The plaintiff accepts that he has not been wholly successful. He has won in relation to the Rental Proceeds and lost in relation to the Sale Proceeds. The amounts at stake are broadly comparable: the Sale Proceeds amounted to $1.08 million and interest thereon began to accrue from September 1992, whereas the Rental Proceeds amounted in total to $3.96 million but interest started accruing later – from January 1997 – and then only on each month’s rental income as and when it was received. 8.In all the circumstances and taking a broad brush approach, we consider it fair that the plaintiff should have two-thirds of the costs of the appeals in this court, with certificate for two counsel. 9.As to the costs of the appeals before the judge, there is no dispute that the defendants should be entitled to at least part of their costs, since the defendants had to bring the appeals in order to set aside the Master’s awards of compound interest, and was ultimately successful in relation to the Sale Proceeds. Based on the judge’s apportionment that 75% of the costs related to the issue of compound interest overall, we think that the fair order is that the defendants should also have two‑thirds of that part of the costs. Accordingly, the plaintiff should pay the defendant’s 50% of the costs of the appeals before the judge, with certificate for two counsel. 10.The costs of the written submissions on costs are to be treated as part of the costs of the appeals before this court.
Written Submissions by Mr Eugene Fung SC and Mr Keith Chan, instructed by Wellington Legal, for the Plaintiffs in CACV 508, 509 & 510/2020 Written Submissions by Mr Paul Lam SC and Ms Astina Au, instructed by Hon & Co, for the Defendants in CACV 508, 509 & 510/2020 | |||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under CACV 508/2020