LAU TIM FAT AND OTHERS v. LI BANG YUEN AND OTHERS

CACV 335/2006 AND CACV 422/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no S. 335 of 2006 AND 422 OF 2006

(on appeal from HCMP NO. 1117 of 2004)

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RULING  ON  COSTS

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Hon Rogers VP:

1.  Following this Court’s judgment given in respect CACV 335 of 2006 and CACV 422 of 2006 a question has arisen as to how the costs in the latter appeal should fall.

2.  The issue in the main appeal CACV 335 of 2006 was decided in favour of the plaintiff and that appeal was dismissed.  However, the appeal in CACV 422 of 2006 was in respect of an order for a stay pending the main appeal.  This court held that it would not have been disposed to allow the appeal in CACV 422 of 2006 because Deputy High Court Judge Muttrie had every justification for granting the stay pending appeal.  The stay, of course, fell away once the main appeal had been disposed of.  In reality, therefore, the appeal in CACV 422 of 2006 failed, albeit by the time it came to be decided events had naturally, and as would have been foreseen, overtaken the necessity for any decision.

3.  In those circumstances, the true position was that the appeal in CACV 422 of 2006 did not succeed and hence the costs of that appeal should be to the respondents to that appeal.

Hon Le Pichon JA:

4.  I agree.