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HCMP 1474/2016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 1474 OF 2016
(ON AN INTENDED APPEAL FROM HCA NO. 381 OF 2015)
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BETWEEN
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NEWOCEAN PETROLEUM COMPANY LIMITED |
Plaintiff |
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and |
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O.W. BUNKER CHINA LIMITED
(in provisional liquidation)
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1st Defendant |
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COSCO PETROLEUM PTE LIMITED |
2nd Defendant |
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| Before: Hon Kwan and Barma JJA |
| Dates of Written Submissions: 18 and 20 July 2016 |
| Date of Decision on Costs: 5 August 2016 |
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DECISION ON COSTS
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Hon Kwan JA (giving the decision on costs of the court):
1. On 11 July 2016, we handed down our judgment giving leave to the 2nd defendant to appeal limited to part of the judge’s order granting leave to serve the concurrent writ out of the jurisdiction pursuant to Order 11 rule 1(1)(d) (the contract claim). We declined to give leave to appeal in respect of that part of the order granting leave to serve the concurrent writ out of the jurisdiction pursuant to Order 11 rule 1(1)(f) (the claim in conversion). The 2nd defendant succeeded only in part of its application for leave to appeal.
2. We made an order nisi that the plaintiff should pay the 2nd defendant half of the costs in the applications for leave to appeal before the judge and before this court, and half of the costs of these leave applications would be in the cause of the appeal.
3. The plaintiff has applied to vary the costs order nisi so as to provide that the 2nd defendant should pay the plaintiff the costs of these two leave applications, to be paid forthwith and taxed if not agreed. Alternatively, it seeks an order that the 2nd defendant should pay the plaintiff half of the costs of these two leave applications, to be paid forthwith and taxed if not agreed.
4. Having considered the submissions of the parties, we have decided to vary the costs order nisi to the alternative order sought by the plaintiff, namely, that the 2nd defendant should pay the plaintiff half of the costs of these two leave applications. Our reasons are as follows.
5. The 2nd defendant has succeeded in seeking leave to appeal only in respect of the contract claim. It has failed in respect of the claim in conversion and the arguments advanced on material non-disclosure.
6. If a party succeeds in obtaining leave to appeal, the usual practice is to order that costs of the leave application be in the cause of the appeal, so that costs would be awarded to the applicant only in the event that his appeal is successful. This was what we had in mind in the costs order nisi in providing that half of the costs of the leave applications should be in the cause of the appeal. The 2nd defendant would only be awarded that part of the costs attributable to the contract claim if it should succeed on appeal.
7. The other half of the costs in the costs order nisi, attributable to the claim in conversion, should not have been awarded to the 2nd defendant. It should have been awarded to the plaintiff, which has successfully resisted the granting of leave to appeal in respect of the conversion claim. This is in accordance with the usual practice where leave to appeal is refused, costs of the leave application would be awarded to the party who successfully opposed the application.
8. Where costs are awarded to a party in refusing leave to appeal, costs are usually taxed summarily and paid forthwith. We had declined to make a summary assessment as the judge had ordered costs of the application before her to be taxed in the usual way.
9. The plaintiff seeks an order that costs should be paid forthwith and taxed if not agreed. This is resisted by the 2nd defendant on the ground that it is not desirable or practicable for half of the costs to be taxed forthwith and the other half to be taxed subsequently and separately upon the determination of the appeal.
10. We do not think that would be the implication of an order that half of the costs of the leave applications should be taxed and paid forthwith. Taxation would be carried out only once, it is just that half of the amount taxed and allowed would be paid forthwith and the other half of the taxed amount would abide by the outcome of the appeal. We are not persuaded that taxation of the costs of the leave applications should be delayed as these applications are discrete and separate.
11. We order that the costs awarded in favour of the plaintiff for the leave applications payable by the 2nd defendant should be paid forthwith and taxed if not agreed.
12. As the plaintiff is largely successful in this application to vary the costs order nisi, we order the 2nd defendant to pay the plaintiff’s costs of this application, also to be taxed and paid forthwith.
(Susan Kwan)
Justice of Appeal |
(Aarif Barma)
Justice of Appeal |
Written submissions by Holman Fenwick & Willan, for the Plaintiff (Respondent)
Written submissions by Reed Smith Richards Butler, for the 2nd Defendant (Applicant)
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