Chau Ka Chik Tso and Others v. Secretary for Justice

HCA 10670/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10670 OF 2000

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BETWEEN

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Before:  Deputy High Court Judge L. Chan in Chambers

Date of Hearing:     27 April 2010

Date of Decision:   27 April 2010

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D E C I S I O N

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1.There are two applications by the plaintiffs, which are in two groups, to vary the costs order nisi I made in my judgment handed down on 30 December 2009. 

2.This is an action by the plaintiffs to claim ownership of some 6.67 acres of land out there in Yuen Long, the New Territories.  They made a number of alternative claims but lost them all.  I made a costs order nisi requiring them to pay the costs of the action to the defendant. 

3.They now say that they should only be liable to pay some and not all of those costs.  They say that they have had some success on certain points they made in one alternative claim, namely, adverse possession, though they in the end also lost that claim.

4.Counsel for the 1st and 11th to 15th plaintiffs submitted that the plaintiffs had some success and it is appropriate for an apportionment of the costs to reflect that.  Counsel referred to the principles of costs stated in Hong Kong Racing Pigeon Association Limited v Lam Koon Nam & Others HCM1454/2003 which were first enunciated in re Elgindata Limited (No. 2) [1992] 1 WLR 1207.  Counsel relied on principle 3 which says:

“3.     The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or costs of the proceedings, he may be deprived of the whole or a part of his costs.”

5.Counsel also said that Order 62 rule 5 of the Rules of the High Court gives the court a lot of discretion and the court is not bound by the need of any event or discrete issue.  I think counsel is referring to Order 62 rule 5(1)(e) and (f) and rule 2.  They provide:

“(1)        The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account-

(e)  the conduct of all the parties;

(f)  whether a party has succeeded on part of his case, even if he has not been wholly successful;.”

Rule 2:

“For the purpose of paragraph (1)(e), the conduct of the parties includes-

(a)     whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b)     the manner in which a party has pursued or defended its case or a particular allegation or issue;

(c)     whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d)     conduct before, as well as during, the proceedings.”

6.Counsel for the 2nd to 10th plaintiffs also relied on Elgindata (No. 2).

7.The action took some eight days for the opening and taking of evidence.  A number of claims were made in the alternative by the plaintiffs.  The first and foremost claim was the correctness of a grant plan.  That took up most of the time.  The lengthy expert evidence was also on this issue only. 

8.For the alternative claim of adverse possession, the fact of occupation by the plaintiffs and their predecessors since sometime before 1924 was not in dispute.  This was so long before the commencement of the trial.  I have referred to this in a decision on expert evidence handed down on 18 June 2007.  What were in issue in this claim were the questions of the intention of the occupiers and the expiration of the interests of the British Hong Kong Government in land in the New Territories.

9.As I have said, the evidence on occupation was not in dispute.  In fact, such evidence was heavily relied on by the plaintiffs in the first claim on the correctness of the grant plan.  It was the mainstay of the plaintiffs’ first claim.  The defendant also referred to this evidence to argue the question of intention in the claim of adverse possession.  The defendant also relied on the evidence of consent or lack of objection by the plaintiffs to the building of an access road over the land in question, but this evidence had to be adduced by the defendant also on their argument of estoppel against the plaintiffs to the extent of the access road going over these lands (see paragraph 219 of my judgment of 30 December 2009).

10.The defendant has indeed lost the argument of intention, but it succeeded on the argument of expiry of interests of the British Hong Kong Government in land in the New Territories, and hence, the defence of this claim. 

11.In the judgment I gave, I only used three pages to deal with the question of intention, but I discussed the expiration-of-interests issue in 10 pages.  The judgment itself has a total of 86 pages. 

12.In a nutshell, the defendant has succeeded in defending all alternative claims.  It only lost one of the points in one of the claims but succeeded in that claim too.  The evidence in this claim was undisputed and there was no piece of evidence that was admitted solely for the purpose of this claim.  In the circumstances, I do not think the defendant had done anything which had contributed to a significant increase in the length of the trial or the costs of the proceedings. 

13.I also do not think that the defendant had lost any issue which was separate and distinct in itself (see Hong Kong Kam Lan Koon Limited v Realray Investment Limited (No. 4) [2005] 4 HKC 162 at 166B and 166E to H.  I also cannot see any problem in the defendant’s conduct of the defence which would require me to exercise my discretion under Order 62 rule 5(1)(e) and rule 2 and to depart from the general rule that costs should follow the event.

14.In the premises, I dismiss both applications by the plaintiffs for variation of the costs order nisi.

15.Now, on the costs of these two applications, the plaintiffs are to bear the costs of the defendant.

Mr Benjamin Chain, instructed by Messrs Y S Lau & Partners, for the 1st, 11th to 15th Plaintiffs

Mr George Chu, instructed by Messrs Leung Kin & Co., for the 2nd to 10th Plaintiffs

Mr Mok Yeuk Chi, instructed by the Department of Justice, for the Defendant