Golden Tonn Industrial Ltd v. Hong Kong Cyberport (Ancillary Development) Ltd

HCA 362/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 362 OF 2011

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D E C I S I O N
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1.This is the plaintiff’s application for leave to appeal from this court’s order dated 27 August 2014, dismissing the plaintiff’s appeal from an order of Master Ho of 24 April 2014.

2.The matter before the master concerned the question whether the plaintiff was entitled to the costs of and occasioned by a summons that was adjourned part heard with costs reserved in the context of a sanctioned payment in Order 22, rule 20 of the Rules of the High Court.  The master dismissed the plaintiff’s appeal.

3.Leave is now sought from this court; the proposed appeal being a “costs only appeal”.

4.The point of law that arises is whether or not this court erred in the construction of Order 22, rules 20(1) and 22(5).  The issue is fully explained in my decision of 27 August 2014 (to which reference should be made).

5.Mr Man, who appeared for the plaintiff, has to demonstrate that he has reasonable prospects of succeeding on the appeal.  The arguments he has advanced are no different from those deployed at the appeal hearing which I have addressed.  In addition, it is said that as a point of law arises for the first time in the context of a sanctioned payment, it is therefore of significance and should be looked at by the Court of Appeal who can provide definitive guidance on the matter.

6.Mr Man accepts that not every new point that arises under the Civil Justice Reform needs the attention or guidance of the Court of Appeal.  I do not consider that the fact that a point of law is involved automatically merits consideration by the Court of Appeal.

7.Having revisited this matter in the light of Mr Man’s submissions, I remain unpersuaded that he has reasonable prospects of succeeding on the construction point.

8.As to the other point relied on, that the court exercised its discretion on costs wrongly, it presupposes that Mr Man is correct on the construction point.  This court had approached the matter on the basis that Mr Man was correct and came to the conclusion that it did, which is set out in the decision.

9.I do not see that there are reasonable prospects of the plaintiff successfully challenging this court’s exercise of discretion either on the well established principles.

10.For these reasons, leave is refused with costs with certificate for counsel.

Mr Bernard Man, instructed by Anthony Siu & Co, for the plaintiff

Mr Eugene Fung SC and Mr Calvin Cheuk, instructed by ONC Lawyers, for the defendant