So Kee Transportation Co Ltd v. The Secretary for The Environment, Transport and Works

cacv 363/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 363 of 2005

(on appeal from LDRW NO. 36 of 2003)

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BETWEEN

Before: Hon Rogers VP, Le Pichon and Cheung JJA in Court

Date of Hearing: 5 December 2006

Date of Judgment: 5 December 2006

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J U D G M E N T

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Hon Rogers VP:

1.This is an application to vary an order nisi of costs made after the appeal.  The order that was made at the conclusion of the appeal was that the matter had to be remitted to the tribunal for retrial and the judgment below was set aside and we made an order nisi for costs - that the costs below and in this court should be in the application.  But having reconsidered the matter in the light of argument, this case really seems to me to be another interlocutory appeal and the usual order on an interlocutory appeal is that the successful party gets its costs.  There is no reason, now I come to consider it again, why that should not be the case here.

2.The appellant in this court, who is the applicant in the Tribunal below, had to come to this court otherwise it would not have been able to proceed at all and we held in its favour.  It is said on the part of the Department of Justice, that first of all there is a Calderbank offer.  The Calderbank offer really has nothing to do with the issues that are in this case and, in any case, we have not seen it.  The issues in this case make the Calderbank offer irrelevant.

3.The other point that was vaguely touched upon was as to whether it was the applicant’s fault that this preliminary issue was taken.  Although I have made it quite clear that I am open to be persuaded that that is so, that has not been established to my satisfaction.  Therefore, I propose that the order as to costs that was made nisi should be varied - that the applicant below, the appellant in this court, should have the costs of the appeal but the costs in the Tribunal should remain costs in the application.

Hon Le Pichon JA:

4.I agree.

Hon Cheung JA:

5.I agree as well.

Mr Benjamin Chain, instructed by Messrs Chan & Tsu, for the Applicant/Appellant

Mr Nelson Miu, instructed by Department of Justice, for the Respondent/Respondent