TREASURE WISE LTD v. LAM MAN AND OTHERS

cacv 135/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 135 of 2006

(on appeal from HCMP NO. 2747 of 2002)

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J U D G M E N T

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Hon Rogers VP:

1.  This is the judgment of the court.  I will commence what I say by saying that, in my view, this is probably an example of a very bad form of unnecessary litigation, it is satellite litigation, par excellence.

2.  There were Order 14 proceedings taken out in this action, not surprisingly, because as the law stood at the time the Plaintiff was entitled to Judgment to retrieve the land which was registered in its name.

3.  However, at the time there was another case that was going to the Court of Final Appeal and everybody knew that.  So the suggestion was made that Judgment should be given for possession and there should be a stay of execution.  That was the right order to make.  The Master raised the query that there was not a notice of appeal.  Well, it should not have taken the Defendant very long to draft a notice of appeal to the Judge in Chambers to satisfy that.

4.  Then after that matters took the normal course.  The Defendant insisted on appealing to the Judge in Chambers.  The Judge came to the right view.  He said, “Look, there should be Judgment for possession but there should be a stay of execution.”  In the meantime there had been applications to the Master and it appears that the Defendant was all the time asking for the action to be stayed and that was not the correct course.

5.  Now the matter comes to this court because, after the Judgment by the Judge below, the Court of Final Appeal has given its decision sometime ago and the appeal has to be allowed and everybody is agreed on that.  Now, there has got to be a trial of the action because this is not the end of the matter.

6.  So what is the right order?  The right order, in our view, is that the costs of the Order 14 application before the Master should be costs in the cause.  The subsequent application before the Master should have been an application for a stay of execution, pending the decision of the Court of Final Appeal and that should be costs in the cause too.

7.  The other costs, specifically the costs of the appeal to the Judge in Chambers, were totally unnecessary.  In my view, the Plaintiffs should get those costs and those costs should be left undisturbed. 

8.  As far as the costs of this appeal are concerned, this could and should have been disposed of very, very simply at virtually no cost to the parties at all.  Both parties have asked for too much and, in our view, the right order for costs today is that there should be no order for costs today.  So we will allow the appeal and make the orders accordingly.