PACIFIC HARBOR ADVISORS PTE LTD AND ANOTHER v. WINSON FEDERAL LTD AND OTHERS

CACV 115/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 115 OF 2016

(ON APPEAL FROM HCA NO 1257 of 2013)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1. After this court (Lam VP and Kwan JA) dismissed the application for stay on 22 July 2016, the 3^rd defendant applied on 3 August 2016 to withdraw his application for leave to appeal to the Court of Final Appeal. Parties had arguments on costs of the Notice of Motion seeking leave to appeal and we have read their respective written submissions.

2. Having considered the submissions, we grant leave to the 3^rd Defendant to withdraw the application for leave to appeal.

3. We do not accept that the Plaintiffs should not be entitled to costs on the abortive Notice of Motion.  We also consider that it is reasonable for the Plaintiffs to engage the same counsel to deal with the application for leave to appeal in light of the impact of the merits of the application for leave on the stay application.  Whether that merits the engagement of senior counsel of the seniority of Mr Chan SC is a question to be considered by the taxing master.  The taxing master will also take account of the urgency under which the Plaintiffs were obliged to engage counsel to oppose these applications. 

4. Though a withdrawal of an application does not necessarily mean that the application for leave is without merit, we are of the view that the application for leave is indeed wholly without merit and it is only tactical to facilitate an ill-conceived application for stay.  We therefore order that the costs of the Notice of Motion up to today (including costs incurred on the argument as to costs) be paid by the 3^rd Defendant to the Plaintiffs and such costs are to be taxed on indemnity basis.