GAO HAIYAN AND ANOTHER v. KEENEYE HOLDINGS LTD AND OTHERS

HCMP 12/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 12 OF 2013

(on an intended appeal from HCA NO. 1315 OF 2009)

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Hon Yuen JA (giving the judgment of the Court):

1.  On 29 April 2013 we gave Judgment refusing leave to the plaintiffs to appeal a decision of Deputy Judge Mayo dismissing their application for summary judgment. We gave an order nisi that the plaintiffs are to pay the costs of the application to the defendants.

2.  Subsequently the defendants applied to vary the costs order nisi.  The court gave directions for written submissions.

3.  The only issue between the parties now is whether the costs of the plaintiffs’ unsuccessful application for leave to appeal should be taxed forthwith, or must await the conclusion of the trial.     

4.  We have read the defendants’ submissions dated 23 May 2013 as well as the plaintiffs’ submissions dated 6 June 2013.  The defendants have referred us to Do Ye Tong Doreen v Wai Hei Wan Wesley [2011] 2 HKLRD 278 where Rogers VP held that when an interlocutory appeal to the Court of Appeal is disposed of, putting an end to that particular aspect of the matter, the parties would be entitled to tax their costs.     

5.  In our view, an unsuccessful application for leave to appeal is a fortiori a discrete matter separate from the action.  Accordingly we consider that the defendants are entitled to have their costs of the application taxed forthwith.  As the plaintiffs have indicated that they have no objection to certificate for two counsel, the costs order absolute that we would make is as follows:

“The 1^st and 2^nd plaintiffs are to pay the costs of the application to the 1^st to 7^th defendants, to be taxed forthwith if not agreed, with certificate for two counsel”.

6.  The defendants’ application to vary the costs order nisi is to be treated as part of the leave to appeal application and accordingly the plaintiffs must pay the costs of this application as well (without counsel’s costs).