HYSAN DEVELOPMENT CO LTD AND OTHERS v. TOWN PLANNING BOARD

CACV 232/2012
and CACV 233/2012
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 232 OF 2012

(ON APPEAL FROM HCAL NO. 38 OF 2011)

________________________

________________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 233 OF 2012

(ON APPEAL FROM HCAL NO. 57 OF 2011)

________________________

________________________

(Heard together)

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DECISION

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Hon Lam VP (giving the Decision of the Court):

1.  In our judgment handed down on 13 November 2014, we directed the parties to reach agreement on the terms of the order pursuant to our judgment. After some discussions between the parties, there are three outstanding matters which we have to decide.

2.  The first and second matters are related to the cross-appeal: whether the cross-appeal should be dismissed or allowed; and what is the appropriate order for costs in the cross-appeal.

3.  We concluded in our judgment of 13 November 2014 that the cross-appeal is academic in view of our conclusions on the appeal.  At paragraph 208 of the judgment, we indicated our agreement with Mr Jat SC that the judge should not have interfered with the decision of the TPB on the basis of what he said at paragraphs 148 to 149 of his judgment.

4.  With respect, we do not agree with the submission of Mr Yu SC on behalf of Hysan that this court must either allow or dismiss the cross-appeal.  No authority was cited to support that submission. The cross-appeal is disposed of by our decision that it is not necessary to deal with it in light of our determination of the appeal.

5.  The proper order in relation to the cross-appeal is that we make no order on the cross-appeal save and except that we shall order there would be no order as to costs in respect of the cross-appeal.

6.  The third matter is the costs of the appeal. Having considered the submissions of the parties, we consider that the appropriate order for costs is that TPB shall pay Hysan 2/3 of the costs in the appeal and 3/4 of the costs below, with certificate for 2 counsel.  Such costs are to be taxed if not agreed.  In our judgment, it is right to deprive Hysan some of the costs here and below on account of the time spent on the constitutionality and ultra vires arguments.  More time were spent on those issues in the appeal as compared with those spent below (as Hysan had expanded on the argument on constitutionality), thus the difference between the percentages at different levels. 

7.  The costs of the submissions on the terms of the order shall be part of the costs of the appeals.

8.  Parties shall submit within 7 days an agreed draft order in light of the above decision for the court’s approval.