Read the full judgment text of CACV 000168/2002 on BabelCite. This Court of Appeal judgment was delivered on 5 August 2002 before Mayo VP, Woo JA, Yuen JA.
Civil procedure – costs – discretion of court – High Court Ordinance (Cap 4) s.52A – RHC Order 62 – whether trial judge plainly wrong to make no order as to costs despite defendant succeeding on claim and counterclaim – oral agreement to guarantee buyback of shares in China Health Enterprises Ltd if no NASDAQ listing – HK$3 million investment – plaintiff's claim dismissed on balance of probabilities – judgment for defendant on counterclaim for HK$58,000 – trial judge found defendant unreliable and evasive in witness box, prepared to distort or fabricate testimony – cross-examination on defendant's connection with subsidiary and associate companies of China Health and termination of Canadian Consulate medical services contract – defendant sought to adduce fresh evidence after judgment to vary costs order – application refused with costs – appeal against refusal to vary costs order – appellate court restraint in interfering with trial judge's discretion on costs – authority of Baylis Baxter v Sabath, Ritter v Godfrey, Lakhan v Wu Wing Tat, Wong Sing Fung v Fung Ming Stainless Engineering Co Ltd, Choy Yee Chun v Bond Star Development Ltd, Alltrans Express Ltd v CVA Holdings Ltd – Sharpe v Wakefield – distinction between depriving successful plaintiff and successful defendant of costs – consideration of misconduct in conduct of proceedings – appeal dismissed with order nisi for costs of appeal against defendant.
Legal issues: Whether trial judge was plainly wrong to make no order as to costs · Whether reliance on peripheral credibility findings to deprive successful defendant of costs was permissible · Effect of refusal of fresh evidence application on costs appeal
Outcome: Appeal dismissed; order nisi that costs of the appeal be borne by the defendant.
Cited by 2 cases