Tam Shuk Yin Anny v. Choi Kwok Chan and Others

FACV No. 3 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2010 (CIVIL)

(ON APPEAL FROM CACV NO. 105 OF 2008)

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Between:

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JUDGMENT ON COSTS

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1.This appeal concerned a single question, namely, whether an order requiring the 1^st and 2^nd respondents to pay interest in the sum of about $26.2 million to the petitioner was validly made.  The Court held that the answer was “No”, allowing the appeal and making an order nisi that the petitioner should pay those respondents their costs of the appeal and in the Court of Appeal.

2.The petitioner accepts that she should pay the costs of the appeal and of the applications for leave to appeal in relation to this Court.  However, she argues that a different order should be made on costs in the Court of Appeal. 

3.She points out that the 1^st and 2^nd respondents initially listed nine grounds in their Notice of Appeal dated 22 April 2008 and then abandoned six of those grounds when they filed their Amended Notice of Appeal dated 29 July 2008.  Those respondents abandoned a further ground in their Re-Amended Notice of Appeal dated 24 April 2009.  After failing in the Court of Appeal, only the interest point was pursued ‒ successfully ‒ before this Court.

4.Because of the aforesaid abandonment of seven of the nine original grounds, the petitioner submits that the appropriate order should be either (i) that the 1^st and 2^nd respondents pay her costs of and incidental to the appeal in the Court of Appeal up to the date of filing their Re-Amended Notice of Appeal, with no order as to costs in the Court of Appeal thereafter; or (ii) that there be no order as to the costs of the appeal before the Court of Appeal.

5.The 1^st and 2^nd respondents have now indicated that they would be content with an order that there be no order as to the costs of the appeal before the Court of Appeal.

6.On that basis, we make the following orders as to costs, namely:

(a)  That the costs of the appeal to the Court of Final Appeal (including the costs of the application for leave to appeal to the Court of Appeal and to the Appeal Committee) be paid by the petitioner to the 1^st and 2^nd respondents;

(b)  That there be no order as to the costs of the appeal before the Court of Appeal; and

(c)  That each party bears its own costs in relation to the written submissions as to costs.

Written submissions by Messrs Howell & Co for the 1st and 2nd appellants (the 1st and 2nd respondents below)

Written submissions by Messrs J Chan, Yip, So & Partners for the respondent (the petitioner below)