FWD LIFE INSURANCE CO (BERMUDA) LTD formerly known as ING LIFE INSURANCE CO (BERMUDA) LTD v. POON CINDY formerly known as POON SIN MEI formerly also known as POON SIN MEI CINDY

CACV 181/2015

[2019] HKCA 1057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 181 OF 2015

(ON APPEAL FROM HCA 2202/2008)

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DECISION ON COSTS

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Hon Lam VP (giving the Decision on Costs of the Court):

1.  Pursuant to our directions in the main judgment of 24 June 2019, counsel for the Plaintiff and counsel for the Defendant have lodged their respective submissions on costs.

2.  Having read those submissions, we now give our decision on costs as between the Plaintiff and the Defendant.

3.  Bearing in mind the history of the appeal and the development of the common law on the implied duty of good faith and rationality (and the fact that the Defendant was made bankrupt at the petition of the Plaintiff[1] based on the judgment which we have set aside), we do not regard the Defendant as having acted unreasonably in the prosecution of the appeal.

4.  In addition to being successful on the implied duty of good faith and rationality, the Defendant also succeeded in respect of an error on the part of the judge in relation to the implied duty of valid reason: see [47] to [51] of the main judgment.

5.  We agree with Mr Dawes SC that though the Defendant failed on the collateral contract issue, in the overall scheme of this appeal it did not substantially add to the costs of the appeal given the time spent on it and the written materials addressing the same.

6.  We will give the Defendant the whole of the costs of the appeal as between her and the Plaintiff, including the costs of the argument on costs.

7.  As regards the costs below, we agree with Mr Nip that it is better to reserve the power to determine the same to the trial judge.

8.  We also order the Defendant’s own costs be taxed in accordance with Legal Aid Regulations.