Montrio Ltd and Another v. Tse Ping Shun David
Read the full judgment text of CACV 291/2011 on BabelCite. This Court of Appeal judgment was delivered on 31 January 2013 before Yuen JA, Kwan JA, Lam JA.
Costs – indemnity basis – open offer – appeal – civil procedure – MGA Entertainment Inc v Toys & Trends (Hong Kong) Ltd & Ors – plaintiffs made open offer to defendant on 12 October 2009 – defendant ought reasonably to have accepted – trial judge varied costs order to indemnity basis for post-offer costs – defendant appealed – plaintiffs cross-appealed on quantum – Court of Appeal dismissed appeal and allowed cross-appeal – order nisi for costs on party-and-party basis – plaintiffs applied to vary to indemnity basis – same reasoning as MGA Entertainment applied – if open offer accepted, no trial and no appeal – application allowed – costs of appeal and Respondents' Notice to be taxed on indemnity basis.
Legal issues: Indemnity costs for appeal
Outcome: Plaintiffs' application allowed; order nisi varied to indemnity basis for costs of appeal and Respondents' Notice.
Cited by 24 cases · Cites 1 case
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CACV 291/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 291 OF 2011 (ON APPEAL FROM HCA NO. 757 OF 2009) ________________________ BETWEEN
________________________ Before: Hon Yuen, Kwan and Lam JJA in Court Date of Written Submissions: 11 and 13 January 2013 Date of Decision on costs : 31 January 2013 ________________________ DECISION ON COSTS ________________________ Hon Kwan JA (giving the decision of the Court): 1.On 28 December 2012, we handed down judgment dismissing the defendant’s appeal and allowing the plaintiffs’ cross-appeal on the quantum of damages. We made an order nisi that the defendant is to pay the plaintiffs’ costs of the appeal and the costs incurred by the plaintiffs in respect of the Respondents’ Notice. On 7 January 2013, the plaintiffs issued a summons to vary the order nisi to the extent that the costs of the appeal and the costs incurred in respect of the Respondents’ Notice are to be taxed on an indemnity basis. 2.Mr C Y Li, SC submitted there are special features in this case to justify indemnity costs in that the appeal should not have been brought. The plaintiffs had made an open offer to the defendant by letter dated 12 October 2009, which the defendant ought reasonably to have accepted. The trial judge had taken this open offer into account and varied his order nisi to provide that costs incurred after the open offer should be taxed on an indemnity basis. Mr Li submitted that if the defendant had accepted the open offer as he should have done, there would not have been a trial and there would be no appeal. 3.Mr Li referred us to MGA Entertainment Inc v Toys & Trends (Hong Kong) Ltd & Ors, CACV 104/2011, 8 August 2012 (Tang VP, Cheung and Lunn JJA), in which the Court of Appeal by a majority took into account the sanctioned offer made in the court below and awarded costs of the appeal to the successful defendants on an indemnity basis as “this follows from the sanctioned offer, which if it had been accepted there would have been no appeal” (at para 73). 4.It seems to us the same reasoning should apply in the present case. We therefore allow the plaintiffs’ application and vary the order nisi to the extent that the costs of the appeal and the costs incurred in respect of the Respondents’ Notice are to be taxed on an indemnity basis.
Mr Li Chau Yuen SC, instructed by Winston Chu & Co., for the Plaintiffs Mr Chase Pun, instructed by Mike So, Joseph Lau & Co., for the Defendant |
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