Master Yield Ltd v. Ho Kan Bau and Another

HCA866/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 866 OF 2008

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BETWEEN

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Before : Hon Suffiad J in Chambers

Date of Written Submissions on Costs : 7 September 2009

Date of Decision on Costs : 15 September 2009

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D E C I S I O N   O N   C O S T S

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1.A written Judgment in this matter was handed down on 25 August 2009 which was an appeal by the plaintiff against the order of Master S. Kwang given on 23 February in which the Master gave summary judgment to the defendants on the defendants’ counterclaim.

2.This Decision on Costs is given after consideration of the written submissions on costs lodged with the Court by the parties as directed in the written Judgment and should be read in conjunction with that written Judgment.

3.In the appeal from the Master, I confirmed the order by the Master for summary judgment on the defendants’ counterclaim but subject to credit being given for the deposit of $300,000 paid by the plaintiff to the defendants.

4.Furthermore, I ordered a stay of execution upon the judgment given on the counterclaim pending the determination of the plaintiff’s claim which is mainly a claim for misrepresentation.

5.To that extent therefore the plaintiff’s appeal was allowed.

6.Those parts of the appeal on which the plaintiff succeeded were not points taken before the Master, but were only argued at the appeal.

7.Consequently, I do not see fit to disturb the costs order made by the Master at the hearing below.

8.As for the appeal itself, I take into account that without the appeal, execution on the judgment upon the counterclaim would not have been stayed. In that sense the plaintiff had to appeal and to that extent succeeded on the appeal.

9.However, I also note that the plaintiff was not successful in seeking unconditional leave to defend the defendants’ counterclaim, but that I affirmed the order made by the Master as to summary judgment on the counterclaim. Therefore to that extent the plaintiff was unsuccessful at the appeal.

10.Given the above circumstances, the fairest costs order to be made in respect of the appeal would be “No order as to costs” such that each party is to bear its own costs of the appeal.

Mr C.Y. Li, leading Miss Angela Gwilt, instructed by Messrs Au, Thong & Tsang, for the Plaintiff

Mr Anthony Lo, instructed by Messrs Y.T. Szeto & Co., for the 1^st and 2^ndDefendant