Read the full judgment text of HCCT 37/2006 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 12 June 2008 before Hon Lam J in Chambers.
Construction and Arbitration — Payment into court — Costs taxation — Counterclaim and claim separation — Stay by consent — Mediation costs — Costs entitlement — Hong Kong Civil Procedure Order 62 rules — Mediation under HKIAC Rules. The dispute arose from a construction sub-contract termination and performance issues with Plaintiff and Defendant in a joint venture and sub-contractorship relationship. After protracted litigation and mediation under the HKIAC rules, the parties settled substantive claims by payment into court and a consent stay of proceedings. The court examined the Defendant’s right to recover costs in taxation proceedings amid dispute over inclusion of mediation costs and extent of entitlement under the payment into court provisions of Order 62 rule 10(2). The court held that the Defendant has automatic entitlement to tax costs of the Counterclaim but not costs related to the Plaintiff’s claim absent a court order and that a stay by consent bars subsequent costs applications on the claim without lifting the stay. Mediation costs, while incidental to the proceedings, are not recoverable given the parties’ agreement under the HKIAC Mediation Rules that each bears its own costs. The court declined to lift the stay to entertain costs applications on the claim and remitted taxations as to the Counterclaim costs. Costs orders for hearings and summons relating to the present costs dispute were also made nisi. This judgment clarifies construction of Order 62 rules on costs entitlement post-payment into court, and the effect of settlements and stays on costs applications in construction litigation involving mediation.
Legal issues: Whether the Defendant has any entitlement to costs in the absence of any specific order · The extent of the Defendant’s entitlement to costs · Whether the court can make an order for costs without lifting the stay · Whether costs of the mediation are recoverable as costs incidental to the proceedings · What costs constitute costs of the Counterclaim · Whether the stay should be lifted for costs orders on the Plaintiff’s claim
Outcome: The Defendant is entitled to tax costs of the Counterclaim under Order 62 rule 10(2). The stay shall remain in place for costs relating to the Plaintiff’s claim, and the Defendant’s application to lift the stay for costs relating to the claim is dismissed. Mediation costs are not recoverable by the Defendant pursuant to the parties’ agreement. The costs proceedings are remitted to the taxing master to continue taxation of costs of the Counterclaim only.
Cited by 9 cases · Cites 1 case