The Hong Kong Electric Co Ltd v. Commissioner of Rating and Valuation
Read the full judgment text of CACV 27/2010 on BabelCite. This Court of Appeal judgment was delivered on 5 November 2010 before Rogers VP, Le Pichon JA and Stone J.
Civil procedure – costs – variation of costs order nisi – rating and valuation appeal – whether costs order should be varied because of an interim payment made at an early stage of the proceedings – whether costs order should be varied because the applicant raised the contractor's basis in the Lands Tribunal proceedings – interim payment of approximately HK$188 million representing about 28% of the amount in dispute – whether applicant was misled into arguing the contractor's basis – Court of Appeal refused to vary the costs order nisi and confirmed that the Commissioner of Rating and Valuation should have the costs both in the Court of Appeal and in the Lands Tribunal – the interim payment was based on the evidence and case put forward by the Commissioner herself rather than on the applicant's case – the applicant continued to argue the contractor's basis even after the Commissioner had made clear it was not her case and was no longer considered relevant – the contractor's basis argument occupied paragraphs 171 to 194 of the Lands Tribunal decision – applicant was not misled into raising the argument – application dismissed.
Legal issues: Variation of costs order nisi based on interim payment and contractor's basis argument
Outcome: Application to vary the costs order nisi refused; the costs order nisi that the Commissioner should have the costs both in the Court of Appeal and in the Lands Tribunal stands.
Cited by 3 cases · Cites 1 case
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CACV 27/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 27 OF 2010 (ON APPEAL FROM LDGA NO. 224 OF 2004 AND LDRA NO. 358 OF 2004 (CONSOLIDATED)) ________________________ LDGA 224/2004 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION GOVERNMENT RENT APPEAL NO. 224 OF 2004 ________________________ BETWEEN
________________________ LDRA 358/2004 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION RATING APPEAL NO. 358 OF 2004 ________________________ BETWEEN
________________________ Before: Hon Rogers VP, Le Pichon JA and Stone J in Court Date of Hearing: 5 November 2010 Date of Judgment: 5 November 2010 ________________________ J U D G M E N T ________________________ Hon Rogers VP: 1.This is an application to vary the costs order that was made nisi when the decision in this case was handed down. The costs order nisi was that the Commissioner should have the costs both here and in the Lands Tribunal. 2.On this occasion, Mr Lam SC has put forward two arguments which he says justify a variation of that costs order. The first is that there was an interim payment of some $188 million at a very early stage in the proceedings before the matter came to be heard and, although that does represent, we are told, approximately 28 per cent of the amount which was in dispute between the parties, nevertheless, as Mr Yu SC has pointed out, that reduction, or the necessity for that reduction, was based on the evidence and the case put forward by the Commissioner herself. It was not based at all upon the case which the applicant was putting forward. 3.So in that circumstance, I do not see that the costs order should be varied for that reason. 4.The other argument was that there was a great deal of evidence and some argument during the course of the proceedings before the Lands Tribunal in respect of the contractor’s basis. 5.It only needs to be said that Mr Lam’s point is that the applicant raised the contractor’s basis because of something which the Commissioner had been putting forward. Even if that be right, the answer to the application which is made today is quite simple. The applicant went on arguing about the contractor’s basis even after those acting for the Commissioner had made it perfectly clear that it was not her case and that it was considered no longer relevant. Since the applicant chose to go on arguing the point and it occupied some part of the decision of the Lands Tribunal, namely paragraphs 171 to 194, I cannot see that this court should make any variation of the order on the basis that somehow or other the applicant was misled into raising a case on that basis. 6.I would therefore not alter the costs order nisi which has already been made. Hon Le Pichon JA: 7.I agree. Hon Stone J: 8.I also agree.
Mr Godfrey Lam SC and Ms Kay Seto, instructed by Messrs Mayer Brown JSM, for the Appellant/Applicant Mr Benjamin Yu SC and Mr Bernard Man, instructed by Department of Justice, for the Respondent/Respondent |
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