Shenzhen Universal Enterprises Industry and Trade Co Supplies and Sales Trade Department v. Wei Bun Trading Co Ltd and Others
Read the full judgment text of CACV 82/1988 on BabelCite. This Court of Appeal judgment was delivered on 10 February 1989 before Cons VP, Hunter JA, Mortimer J.
Civil procedure – Court of Appeal – application to discharge order – alleged breach of undertaking – application withdrawn at outset of hearing – costs of unsuccessful application. The defendants applied to discharge an order made by the Court of Appeal on 16 November 1988, alleging that the plaintiff had failed to honour an undertaking given to the Court of Appeal on 6 November 1988. The application was insufficient in form, as it did not specify what undertaking was broken or the breach alleged; that information emerged only in a supporting affidavit filed some days later. At the outset of the hearing on 10 February 1989, the application was withdrawn. The court held that the application had wholly failed. Whether the ordinary rule that an unsuccessful applicant pays the costs should be displaced or a special or penal costs order made. The court held that the ordinary rule applied, and there was no reason to depart from it and no basis for any special or penal costs order. The application was recorded as withdrawn, and the applicants were ordered to pay the plaintiff's costs of the application, to be taxed if not agreed.
Legal issues: Costs of a withdrawn application to discharge a court order
Outcome: Application withdrawn; applicants ordered to pay the plaintiff's costs of the application
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CACV000082/1988
_______________________ Coram: Hon Cons, V.-P. Hunter, J.A. & Mortimer, J Date of hearing: 10 February 1989 Date of judgment: 10 February 1989 ______________ J U D G M E N T ______________ Hunter, J.A. : 1. This started as an application by the defendants to discharge an order made by this Court on the hearing of an appeal on 16th November 1988 on the basis that the plaintiff "failed to honour its undertaken gave (sic) to the Court of Appeal on 6th November". The application was totally insufficient in form because it did not specify what the undertaking was that had been broken or the breach alleged. That only emerged in a supporting affidavit that was filed some days later. 2. It is unnecessary to go into merits because the application was withdrawn at the outset of the hearing. The only issue which has been argued before us is the costs of the application. On that we say no more for this. The application has wholly failed. We can see no reason at all to depart from the ordinary rule as to costs, that when an application of this nature is launched and fails the applicant pays the costs. We can also see no basis for making any Special or penal order as to costs in the circumstances of this case. So the Court's order is that the application is withdrawn, and the applicant respondents are ordered to pay the plaintiff's costs to be taxed if not agreed. Representation: Mr. K M Chong (M/s John M Pickavant & CO) for 1st-4th Applicants/Defendants Mr. M Bharwaney (M/s Kwan & Kwan) for Respondents/Plaintiffs |