THE INCORPORATED OWNERS OF MAN HONG APARTMENTS v. KWONG YUK CHING AND OTHERS

CACV 498/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 498 OF 2000

(ON APPEAL FROM DCCJ 22394 OF 1998)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. Two matters are raised on this application. The first is an application to vary the order nisi made in our judgment in relation to costs and the second is to extend the time when the injunction we granted should come into effect.

2. So far as the costs order is concerned the defendants propose that D3 should pay half of the costs of the appeal and that there should be no order for costs in relation to the trial below. The rationale for making no order for costs in relation to the trial below is that it is contended that the issues canvassed below were entirely different to those ventilated in the appeal. It does not appear to us that this contention is made out. While it is true that the Judge below did mainly confine himself to the adverse possession issue it is evident on an overall perusal of the papers that much wider issues were argued. Insufficient material has been put forward to justify a departure from the usual order for costs following the event. Also the fact that amendments were made to the Notice of Appeal shortly before the hearing does not appear to have been a critical factor in relation to the costs of the appeal.

3. It is also submitted that the joinder of D1 and D2 was not necessary and that the costs order should reflect this. Both sides now agree that no costs order should be made in relation to D1 and D2.

4. On the second matter no good reason has been given why the injunction should not take immediate effect. The defendants were aware of the outstanding litigation when renewing the tenancy. They should have realised that it was possible that the plaintiff might succeed. It would have been prudent to include some form of escape clause in the tenancy in the event of the plaintiff succeeding.

5. In our view the costs order should be modified only to the extent that it should provide that there be no order for the costs of D1 and D2 and that D1 and D2 should not be liable for the plaintiff's costs, and the extension of time requested should be refused. However, we would like to clarify that the injunction will take effect one month from today's order being served upon D3.