Dragon House Investment Ltd v. The Secretary for Transport
Read the full judgment text of FACV 13/2004 on BabelCite. This FACV judgment was delivered on 12 January 2006 before Bokhary PJ, Chan PJ, Ribeiro PJ, Nazareth NPJ, Millett NPJ.
Civil procedure – costs – judgment silent on costs – parties not heard on costs – sealed orders obtained by appellants without notice to respondents – whether Court of Final Appeal is functus on costs – costs follow the event – security for costs to remain in court. The two appeals, brought by Dragon House Investment Limited and Nam Chun Investment Company Limited against, respectively, the Secretary for Transport and the Director of Lands, were dismissed by judgment handed down on 21 November 2005. The judgment was silent on costs, and the parties were not heard on costs. The same day, the Department of Justice wrote inviting submission to costs. On 24 November 2005, the appellants obtained sealed orders, also silent on costs, without notice to the respondents and without the Registrar's personal knowledge. Written submissions on costs were directed by the Registrar after consulting a Permanent Judge. The court held that it was not functus on the question of costs: since the parties had not been heard on costs, the judgment's silence could not signify anything other than that costs remained to be dealt with after submissions, and the sealed orders, obtained without notice, could not shut out the respondents' right to be heard. As to the second question, the appropriate order as to costs, the court saw no reason why costs should not follow the event, the appeals having been dismissed. The court therefore affirmed the Court of Appeal's costs orders, awarded the respondents the costs of both appeals to the Court of Final Appeal (including the costs of the applications for leave to appeal and the costs of the written submissions on costs), and directed that the money paid in by the appellants by way of security for costs remain in court to be applied towards the respondents' costs as eventually taxed or agreed.
Legal issues: Whether the Court of Final Appeal is functus on the question of costs · Order to be made as to costs
Outcome: The Court of Final Appeal held that it was not functus on the question of costs. The Court of Appeal's costs orders were affirmed, and the respondents were awarded the costs of both appeals to the Court of Final Appeal, including the costs of the applications for leave to appeal and the costs of the written submissions on costs. The security money paid in by the appellants was directed to remain in court to be applied towards the respondents' taxed or agreed costs.
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FACV No. 13 of 2004 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NO. 13 OF 2004 (CIVIL) (ON APPEAL FROM CACV NO. 1284 OF 2001) _____________________ Between :
_____________________ FACV No. 11 of 2005 FINAL APPEAL NO. 11 OF 2005 (CIVIL) (ON APPEAL FROM CACV NO. 335 OF 2003) _____________________ Between :
_____________________ Court: Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Nazareth NPJ and Lord Millett NPJ Date of Judgment: 12 January 2006 ___________________________ JUDGMENT ON COSTS ___________________________ Mr Justice Bokhary PJ: 1.This is the judgment of Court on costs. 2.By our judgment handed down on 21 November 2005 we dismissed both of these appeals. The parties have not been heard on costs. And the judgment was silent on the question of costs. 3.After judgment had been handed down and on the same day, the Department of Justice for the respondents wrote to the appellants’ solicitors Messrs K C Ho & Fong inviting the appellants to submit to costs and informing them that the respondents would otherwise apply to the Court for costs. The letter was copied to the Registrar. Nothing happened for three days. 4.Then on 24 November, without notice to the respondents and without the personal knowledge of the Registrar, the appellants obtained sealed orders which, like the judgment, were silent on the question of costs. 5.On 26 November the Department of Justice wrote to the Registrar stating that it had not had an opportunity to comment on the draft orders before they were sealed. The letter indicated that the respondents would apply for costs by way of written submissions and that any application by the appellants for payment out of the money which they had paid in by way of security for costs would be opposed. On 28 November the Registrar, having consulted a single Permanent Judge, gave directions for the filing of written submissions on costs. 6.We have now considered those written submissions. Two questions arise. The first question is whether the appellants are right in their contention that we are functus on the question of costs. And the second question is what order we should make as to costs if we are not functus. On the merits, the respondents ask for costs here and below including the costs of the written submissions to us on costs. The appellants, on the other hand, ask that there be no order as to costs here and below, alternatively, that costs here and below be in the cause of the reassessment before the Lands Tribunal. 7.As to the first question, the position is as follows. Since the parties have not been heard on costs, the judgment’s silence on costs cannot be taken to signify anything other than that costs remained to be dealt with by us after submissions from the parties. Since the orders were sealed without notice to the respondents, the sealed orders cannot shut out their right to be heard on costs. Accordingly we are not functus on the question of costs. As to the second question, we see no reason why costs should not follow the event. 8.In the result, we:
Written submissions by Mr Patrick Chong (instructed by Messrs K C Ho & Fong) for the appellants Dragon House Investment Ltd and Nam Chun Investment Co. Ltd Written submissions by Mr Edward Chan SC (instructed by the Department of Justice) for the respondents the Secretary for Transport and the Director of Lands |
Further hearings and rulings under FACV 13/2004