Dragon House Investment Ltd v. The Secretary for Transport

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)

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Between :

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FACV No. 11 of 2005

 FINAL APPEAL NO. 11 OF 2005 (CIVIL)

(ON APPEAL FROM CACV NO. 335 OF 2003)

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Between :

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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

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JUDGMENT  ON  COSTS

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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: 

(i) affirm the orders as to costs made by the Court of Appeal;

(ii) award the respondents the costs of both of these appeals to us (such costs to include the costs of the applications for leave to appeal to us) and the costs of the written submissions to us on costs; and

(iii) direct that the money which the appellants paid in by way of security for costs remain in court to be applied towards the respondents’ costs as eventually taxed or agreed. 

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