Ubs Securities Asia Ltd v. Multec International Holdings Ltd

CACV 269/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 269 OF 2007

(ON APPEAL FROM HCA 672 OF 2007)

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BETWEEN

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Before : Hon Cheung JA, Stone and Suffiad JJ in Court

Date of the Plaintiff’s written submission on costs : 31 October 2007

Date of the Defendant’s written submission on costs : 5 November 2007

Date of Judgment on Costs : 10 December 2007

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JUDGMENT ON COSTS

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Hon Cheung JA :

1.The parties were unable to agree on costs and have lodged written submissions on this issue.

2.Deputy High Court Judge Muttrie gave summary judgment to the plaintiff for the sum of HK$14,138,754.75.  On appeal by the defendant the judgment was reduced to the sum of HK$1,225,191.79; the defendant was given conditional leave to defend the sum of HK$4,131,148.05 and unconditional leave to defend the balance of the plaintiff’s claim, namely $8,782,414.91 ($14,138,754.75 less $1,225,191.79 and $4,131,148.05).

3.In considering the costs below before the Judge, I will confine my decision to the costs of the application for summary judgment and not the costs of the action which should be left to be dealt with when the question as to the residue is determined because it is undesirable, if not impracticable, to have two orders dealing with the costs of the action : paragraph 14/7/9 of the Hong Kong Civil Procedure 2008. 

4.In all the circumstances of this somewhat unusual case, I will order 70% of the costs for summary judgment to the plaintiff, while the remaining 30% is to be dealt with at the discretion of a judge of the Court of First Instance when the merits of the balance of the plaintiff’s claim is determined at trial.

5.On appeal, the defendant, although unable to overturn the judgment on liability, managed to reduce the amount of the damage substantially.  The Court is not provided with information from the parties as to whether the defendant had complied with the condition and I proceed on the basis that he had because the plaintiff has previously indicated that if the defendant failed to comply with the condition, it will make further submission on costs.  The plaintiff has not lodged any written submission since.

6.The plaintiff asked for 75% of the costs of the appeal.  In my view it is exceptional for a successful appellant, although a partially successful one, to bear the respondent’s costs.  I have considered whether each party should have 50% of the costs of the appeal in view of the fact that the defendant was partially successful, but I consider a broad brush approach is called for and the order I will make is that there will be no order as to the costs of the appeal.

Hon Stone J :

7.I agree with the judgment of Cheung JA.

Hon Suffiad J :

8.I agree.

Ms. Yvonne Cheng, instructed by Messrs Herbert Smith, for the Plaintiff

Mr. Russell Coleman, SC and Mr. Jonathan Wong, instructed by Messrs Richards Butler, for the Defendant