O v. S

HCCT 82/2026

[2026] HKCFI 5380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS NO 82 OF 2026

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DECISION ON COSTS

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1.  After I handed down my Decision on 31 August 2026 ([2026] HKCFI 4910) (the “Decision”), Party D wrote to the Court on 3 September 2026 in relation to costs, drawing my attention to:-

(1)  Chun Wo Construction & Engineering Co. Ltd and Others v The Hong Kong Housing Authority [2019] HKCA 541 at §3 and CNG v G [2024] 2 HKLRD 152 at §§1-3 and 75 for the well-established practice that “a party who failed to set aside an arbitral award is required to pay indemnity costs”; and

(2)  Party D’s letters dated 29 May 2026 and 9 June 2026 offering Party P to discontinue the proceedings herein with no order as to costs.

2.  Party D essentially asks me to review the costs order I made in §87(2) of the Decision such that I should order Party P to pay Party D costs on an indemnity basis, with certificate for three counsel.

3.  Party P’s written response is that (1) Party P’s application was reasonably arguable and (2) Party D’s offers in the said letters were based on the HKIAC’s rejection of Party P’s challenge on the same ground but Party P was not bound to accept HKIAC’s rejection and was entitled to mount the challenge in court. While I accept that Party P was not bound to accept the HKIAC’s rejection of Party P’s challenge on the same ground but Party P was not bound to accept HKIAC’s rejection and was entitled to mount the challenge in court, this is a factor I should consider – had Party P accepted the offers, there would not have been costs incurred for the full-blown hearing before me.

4.  Having considered the requirement of prejudice for setting aside (§§65-67 of the Decision), the notable absence of any prejudice (§75 of the Decision, and in fact, Party P’s position was no prejudice was required: see §66 of the Decision), and Party D’s offers, I see no good reason to depart from the well-established practice of awarding indemnity costs.

5.  Therefore, I review my costs order in §87(2) of the Decision, and order that Party P shall pay Party D costs (including all costs reserved and the costs of the present application for review) on an indemnity basis, with certificate for three counsel.

6.  For the purpose of summary assessment, Party D shall lodge and serve a revised statement of costs within 5 days from today and Party P shall lodge and serve a list of objections thereto within 7 days thereafter.