Shandong Hongri Acron Chemical Joint Stock Co Ltd v. Petrochina International (Hong Kong) Corporation Ltd
Read the full judgment text of CACV 31/2011 on BabelCite. This 高等法院上訴法庭 judgment was delivered on 11 August 2011 before Hon Kwan JA.
Costs — Security for Costs — Foreign Arbitration Award — Discretion — Whether to reduce costs awarded where applicant failed on several issues — Certificate for two counsel — Whether variation of costs order appropriate. The respondent applied for security for costs in a civil appeal involving foreign arbitration awards. The Court refused security and ordered the respondent to pay costs with a certificate for two counsel. The respondent’s subsequent application to vary the costs orders to reduce costs by half and remove the certificate was refused. The court held the issues the applicant lost did not significantly increase costs and the discretion issue relating to foreign awards justified the costs and two counsel. The respondent’s application for no order as to costs or reduced costs was dismissed. Ultimately, respondent was ordered to pay applicant’s costs of both the application for security and the variation application. Certificate for two counsel was granted for the security for costs application only.
Legal issues: Proportionate costs order on failed application · Whether to grant a certificate for two counsel · Variation of order nisi on costs
Outcome: Respondent ordered to pay applicant's costs of the security for costs application and variation application; certificate for two counsel granted for the former only.
Cited by 2 cases
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CACV 31/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 31 OF 2011 (ON APPEAL FROM HCCT NO. 45 OF 2009) ____________ BETWEEN
____________ Before: Hon Kwan JA in Chambers Dates of Written Submissions: 14, 21 and 28 July 2011 Date of Handing Down of Decision on costs: 11 August 2011 ____________________________ DECISION ON COSTS _____________________________ 1.On 13 June 2011, I handed down my decision dismissing the respondent’s application for security for costs of the appeal. I made an order nisi that the respondent is to pay the applicant’s costs in any event on a party and party basis, with a certificate for two counsel. The respondent applied by summons on 27 June 2011 to vary the order nisi that there should be no order as to costs of its failed application, alternatively the applicant be deprived of half of its costs and with no certificate for two counsel. I directed that this application be dealt with on the basis of written submissions without a hearing. 2.To seek a no costs order on an application which the respondent has lost is simply unrealistic. Nothing further need be said about this. 3.The respondent’s position, as stated in its two submissions of ten pages, may be summarised as follows:
4.I reject the above contentions of the respondent. I see no sufficient basis for departing from the general rule that costs should follow the event. The issues on which the applicant failed were easily disposed of and would not have caused significant increase in the length or costs of the proceedings. Besides, it lies ill in the mouth of the respondent to complain of lengthy affidavits and evidence filed by the parties dealing with the substantive merits of the case of each when it was the respondent who asserted that the appeal had no merits in the first letter of its solicitors seeking security for costs. 5.Quite clearly, it was the Discretion Issue that was the substantial issue in this application. It was not a point decided previously by the Court of Appeal and which I did not find easy to resolve. The applicant had given notice to the respondent that the Discretion Issue would be taken to oppose the application in the letter of its solicitors dated 24 March 2011 and its affidavit in opposition filed on 23 May 2011, although the detailed arguments were not developed. It was really up to the respondent’s legal team to do their own research and form their own view on the Discretion Issue. They decided to proceed with the application and the Discretion Issue was resolved against them. This issue justified the engagement of leading counsel, who prepared the written submission. 6.I decline to vary the order nisi as sought by the respondent. I also decline to vary the order from paying costs in any event to costs forthwith, as sought by the applicant. I order the respondent to pay the applicant’s costs of the application for security for costs and the application to vary the order nisi in any event. I grant a certificate for two counsel in the application for security for costs only.
Ms Teresa Cheng, SC and Mr Adrian Lai, instructed by Messrs Hogan Lovells, for the Applicant Messrs Mayer Brown JSM, for the Respondent | |||||||||||
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