Tang Tak Sum and Another v. Tang Kai Fong

CACV 177/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 177 OF 2013

(ON APPEAL FROM HCA NO. 2089 OF 2009)

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D E C I S I O N
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Hon Cheung JA (giving Decision of the Court) :

1.In our judgment of 28 November 2014 we allowed the plaintiffs’ appeal and entered judgment for the plaintiffs for, amongst other things, an account of the income received by the defendant from the Land. We set aside the judgment entered for the defendant in respect of his adverse possession of the Land. We ordered that the plaintiffs are entitled to half of the costs of the appeal and below on a provisional basis.

2.The defendant applies to vary the costs order.  He submits that there are seven issues in this case and the plaintiffs only succeeded on two of them.  As such the defendant is entitled to 75% of his costs of the appeal and below and the plaintiffs are entitled to 25% of these costs.  The 25% entitlement should further be reduced by 10% because the plaintiffs succeeded on issues not because of their own efforts but because of this Court’s view on the issues.  The defendant asks for a 60% costs order in his favour after setting off the plaintiffs’ 15% costs from the defendant’s 75% costs.

3.The principle on costs is well established.  The Court of Final Appeal in Cathay Pacific Airways Ltd v Kwan Siu Wa Becky & Others (unrep. FACV 5/2012, 26 July 2013) at paragraph 4 stated :

‘ ... it ought to be recognized that where discrete issues are raised in an appeal, generally the Court will, as a starting point in determining the question of costs, examine how the parties have succeeded (or failed) on these issues. The Court will then take an overall view of the matter to arrive at a suitable order. We use the word “overall” to emphasize that the Court will not generally go into a minute examination of whether each issue and each sub-issue and argument within each issue has been argued successfully or not by the parties. Usually, an overall view of the justice of the case will serve as the best guide to determine the question of costs.’

4.There are indeed discrete issues raised in this case but it is important to bear in mind that what the plaintiffs seek to achieve by the litigation is to have an order compelling the defendant to render an account of the income he received from the Land.  While they had failed on the basis of a valid ancestral worship trust, they succeeded on the basis that the defendant is liable because he is charged by the co-owners to receive the rent from the Land.  The history of the ancestral worship trust must necessarily be examined in order to find liability against the defendant.  The defendant further failed in their counterclaim.  Taking an overview of the matter we maintain our view that the plaintiffs are entitled to half of the costs of the appeal and below.

5.Accordingly the defendant’s application to vary the costs order is dismissed with costs to the plaintiffs.

Mr K M Chong and Mr Aidan Tam, instructed by Arthur Au & Co., for the 1^st and 2^nd plaintiffs

Mr Erik Shum, instructed by Wong, Hui & Co., for the defendant