CHIN LAN HONG AND OTHERS v. CHEUNG POH CHOO AND OTHERS

cacv 98/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 98 of 2004

(on appeal from HCA NO. 1208 of 2000)

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J U D G M E N T

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Hon Rogers VP:

1.  This was an application to vary order costs nisi after an appeal.  The variation sought was a variation not as to the costs in this court, which the plaintiff concedes the 1^st defendant is entitled to, but a variation of the costs order in the court below.

2.  The application is put on the basis of a Calderbank letter, which was written on 17 January 2003, sometime shortly before the trial.  But in order to make the case good, Mr Shieh SC, who appears on behalf of the plaintiff seeks to say that the Calderbank letter was reasonable because the 1^st defendant had not succeeded on all the defences which were raised, and some of those defences, if they had succeeded, might have made it difficult for the plaintiff to obtain a partition order.

3.  As to that, it has been pointed out that the plaintiff was in some difficulty in obtaining a partition order because it could not settle its claim against the 2^nd and 3^rd defendants and without doing that obtaining an order would have been problematic in any event.  But be that as it may, what it really amounts to is this, that the 1^st defendant has raised a number of defences.  In respect of some of those she has succeeded, and succeeded importantly as far as the 1^st defendant is concerned, because the 1^st defendant has successfully defended the claim which would have been very costly in respect of her occupation of the premises until the date when possession was given up.

4.  In the course of argument I asked what the full claim would have been on the basis of the $36,000 which had been ordered by the judge for the few days which the judge had held had not been properly covered by the 1^st defendant’s defences.  No figure has been provided but it is quite clear it would have been a very substantial amount. 

5.  The plaintiff’s case is really that the 1^st defendant has raised some unnecessary defences and one looks to see what that might have caused.  In my view, it has not caused any extra evidence to be called, the evidence would have been the same whether those defences succeeded or not.  It may have slightly lengthened the arguments at trial but looking at it from the point of view of this court, it is difficult for this court to make any assessment as to how much the trial has been lengthened.  Speaking personally, I doubt that it was very much and this court is not, in my view, in a position to assess that. 

6.  In my view the order for costs should remain as ordered in the order nisi.

Hon Woo VP:

7.  I agree.

Hon Le Pichon JA:

8.  I agree.

(Discussion re costs)

Hon Rogers VP:

9.  Costs to 1^st defendant.