WIN GLORIES LTD v. MAJORLUCK LTD

CACV 506/2018

[2020] HKCA 54

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 506 OF 2018

(ON APPEAL FROM LDPE NO 824 OF 2017)

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JUDGMENT

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Hon Yuen JA (giving the Judgment of the court):

1.  On 1 November 2019, this court handed down judgment (“the Judgment”) in which we allowed the Respondent (“Tenant”)’s appeal from a Judgment of the Lands Tribunal given on 17 November 2017 in LDPE824 of 2017 and made an order nisi that the Applicant (“Landlord”) pay the costs on appeal and in the Tribunal.

2.  On 15 November 2019, the Landlord issued a summons for an order that the costs order nisi be varied to the extent that it pays only 70% (or any percentage as the Court thinks fit) of the Tenant’s costs of the appeal and below.

3.  On 19 November 2019, the Registrar of Civil Appeals gave directions for the filing of written submissions which both parties have complied with.  We have decided to determine the summons on paper.

4.  In brief, the Landlord submitted that what it had sought to recover from the Tenant was a fair proportion of charges which included utility and rates charges, although it had also sought to recover a fair proportion of management charges such as staff costs etc. The Tenant had refused to pay anything.  This court held that although the Tenant was not liable in respect of management charges such as staff costs etc, it was liable to pay a fair proportion of utility and rates charges.  Therefore, the Tenant was only partially successful on appeal.  Applying a “fair proportion” approach to the utility and rates charges, the Landlord has deducted a sum of $200,145.97 from the sum which the Tribunal had ordered the Tenant to pay ($543,839.23).    

5.  The Tenant submitted that the costs should follow the event despite a more liberal approach in recent years, and it has challenged the sum deducted.

6.  Be that as it may, we note that the Tenant has hitherto never offered to pay any sums at all to the Landlord.  As such, it was necessary for the Landlord to incur costs to issue proceedings in order to recover any sum from the Tenant. Taking that into account, and in the exercise of our discretion, we consider it appropriate to vary the costs order to the extent that the Landlord is to pay 70% of the Tenant’s costs on appeal and in the Tribunal.