XCHRX W. HO CIVIL ENGINEERING & CONSTRUCTION CO. LTD. v. B + B CONSTRUCTION CO. LTD.

HCA 9382/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL ACTION NO. HCA 9382 OF 1999

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J U D G M E N T

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1. I have before me an application for a stay under the Arbitration Ordinance which in the event has been disposed of by the parties agreeing to a consent order. There has, however, been some dispute as to costs.

2. Mr. Tse who appears on behalf of the Plaintiff explains some of the reasons why the Plaintiff sought initially to resist the stay application. These may or may not have been good reasons. This will not be determined since the application will now not be argued. However, whatever reasons there may have been, the Plaintiff has now consented to the application and there is no reason why costs should not follow the event.

3. Mr. Tse also argues that a certificate for counsel should be refused on the basis that its letter of 4th October 1999 had made it sufficiently clear to the other side that the only issue at stake was the issue of costs, that is, an issue that could adequately have been dealt with between solicitors.

4. With respect to Mr. Tse, I do not read his letter as unconditionally consenting to a stay but as suggesting, as a package, a stay of the proceedings on terms that the arbitrator is eventually to be asked to determine all costs orders including the way costs in the present application should be dealt with. This is something that the Defendant was never happy with and has indeed led to argument on this matter today. I am, therefore, unable to accept that the Defendant should be deprived of the costs of instructing counsel.

5. Mr. Tse also suggests that the quantum of costs for this application should be limited by reference to a particular date on the basis that such was the date when further documentation in support of the stay application was filed.

6. In my judgment, there is no basis for limiting the costs in this way because, as I have stated, whatever the interim thinking of the Plaintiff might have been, at the end of the day, they have consented to the order for a stay being made.

7. I therefore order that the costs of this application be to the Defendant certified fit for counsel.

(Having heard submissions on the draft consent order) In order to save time, I will order that all the proceedings in this action be stayed and the costs order to be as I have already been stated.