XCHRX CHUN WO BUILDING CONSTRUCTION LTD. v. CHINA MERCHANTS TOWER CO LTD. AND OTHERS

HCCT107/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO.107 OF 1999

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ADDENDUM ON COSTS

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1. Following the court's order nisi on costs, all respondents asked to be heard on the question of costs. Comparatively lengthy written and oral submissions were made. By reference to the correspondence, different parties have proposed a variety of different costs orders. The 1st respondent pointed to an "agreement" made in correspondence. The applicant correctly observed it was not a complete agreement. All respondents pointed to the fact that the applicant's request for consolidation was abandoned two days before the hearing. This made no difference to the position taken by the 1st and 2nd respondents at the hearing who unsuccessfully contested the applicant's alternative order, namely for an order that the arbitrations be heard together. It is plain from a reading of the whole of the correspondence that subject to the question of costs, the applicant would have agreed to, from the very beginning, an order that the arbitrations be heard together. The 1st respondent never agreed the costs and contested the whole issue; the 2nd respondent never intimated any agreement, even to the applicant's alternative proposal.

2. I am not persuaded that I should alter my costs order nisi. In particular, I am not persuaded that it is necessary to do any fine tuning of the costs order to reflect specific dates and times before or after which one party or another should not be liable to costs. Such fine tuning might be appropriate if criticism of the applicant's conduct of the proceedings were justified. I am satisfied that it is not.

3. The 3rd respondent indicated its consent to an order that the arbitrations be heard together at an early stage. It was anxious to keep costs to a minimum which I expect it has succeeded in doing. They nonetheless had to be included in the summons, by its very nature. There are compelling arguments why the applicant should not be liable for the 3rd respondent's costs. They did nothing wrong in relation to them. There are also arguments, albeit less compelling, why the 1st and/or 2nd respondents should not be liable. On the one hand, by their opposition to the summons, they caused them to be in court, but on the other hand they were not the 3rd respondent's opponents. I consider, in all the circumstances, that it is an appropriate case to make no order as far as the 3rd respondent's costs are concerned. This order was in fact, implicit in my order nisi which was silent as to the 3rd respondent. I made no order.

4. My costs order nisi shall stand as a final order and shall include the costs incurred by this additional hearing.