Lu Hung Lok v. Lee Siu Kee and Another

HCA001208A/1995

1995, No. A1208

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: The Hon. Mr. Justice Seagroatt in Chambers

Date of hearing: 23 October 1995

Date of judgment: 23 October 1995

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AMENDED JUDGMENT ON COSTS

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1. Since my making of a 'nisi' costs order in this case I have heard argument on the question of what order I should make in respect of the various stages of the proceedings.

2. The first point made is that the Appeal substantially concerned the rear damage as it had been conceded before the Master that there could be no defence to the frontal damage. The Notice of Appeal however put the whole of Master Jenning's judgment under Order 14 in issue - there was no concession in relation to the frontal damage. But on the hearing Mr. Chan had conceded that liability for the frontal damage lay with the Defendants and the only issue was the rear damage.

3. Accordingly the Defendants succeeded on the substance of the Appeal. It was and remains my view that the Defendants are in grave difficulty in their contentions even though I accept that the contents of their affirmations just, and only just, established a credible argument. It seemed to me that fairness and justice required that whoever wins on the issue of liability for the rear damage, should have their costs of the hearing before the Master (who may well be right in his overall views on liability) and their costs of this Appeal (and of the argument today on costs.) It seems wrong to me that if the Defendants' contentions on the affirmations are shown to be spurious, that they, should none the less, have the costs of the Appeal.

4. Although it is clear that the order for costs is usually in favour of the successful appellant, there is a discretion, which of course has to be exercised properly, and there are circumstances which justify a departure from the norm. This case is one in which I should exercise my discretion to achieve what I believe to be the fair and just objective, and I make an order that the costs of the Appeal and of the hearing before the Master, be costs in the cause.

5. The Plaintiff retains his judgment with costs given by the Master in respect of the frontal damage.

Representation:

Mr. Simon H.W. Lam instructed by Messrs. Au, Wong, Kong & Tang, Solicitors for the Plaintiff/Respondent.

Mr. Kenneth Chan instructed by Allen Chan & Co., Solicitors for the Defendants/Appellants.