XCHRX LORD ENERGY LTD. v. PAUL CHEN AND ANOTHER

H.C.A. No.7124 /1991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7124 OF 1991

____________________

______________________________

DECISION

______________________________

Background

1. On 14th March 2000 I made a nisi order to the effect that the costs of the Inquiry be borne by the Plaintiff, to be taxed if not agreed, with certificate for counsel. On 15th March 2000 solicitors for the Plaintiff indicated that they would like to be heard on the question of costs and a hearing was fixed for this purpose on 22nd May 2000.

Argument

2. Mr. S. H. Choi, solicitor acting for the Plaintiff, contended that the inquiry proceeding before me is different from an ordinary assessment of damages. He referred me to the actual wordings of the order made by the Court of Final Appeal and submitted that since there was no reference to costs, it is implicit that the costs of the inquiry was part of the costs of the Court of Final Appeal, which was to the Plaintiff. He submitted that since the inquiry had to be done in any event, in the absence of any unreasonableness on the part of the Plaintiff, costs should be borne by the Defendants who were unsuccessful in the Court of Final Appeal.

3. Mr. Choi also referred me to the Queen's Bench Form no. 1475 to contend that if the Court of Final Appeal were minded to leave the question of costs to the Master hearing the inquiry, it would or could have done so.

4. Mr. Christopher Choi, counsel for the Defendants, contended that there is no difference in principle between an inquiry and an assessment of damages. The test is whether the inquiry should take place. As the Plaintiff failed to prove any loss, the normal rule that costs follow the event should apply. Mr. Choi relied on the case of Gaviolo v. Shepherd (1899) 17 R.P.C. 157 to support his contention that as no damages were found after the inquiry, the costs of the inquiry should be to the Defendants. It is to be noted, however, that the question of costs was reserved pending the inquiry in Gaviolo.

Ruling

5. After considering submissions by both parties, I agree with Mr. Christopher Choi that there is no difference in principle between the inquiry ordered by the Court of Final Appeal and an assessment of damages. The Court of Final Appeal has directed a Master to make inquiry to see if there is any loss sustained by the Plaintiff as a result of the stay. As the Plaintiff failed to prove that it has suffered loss, there is no reason why costs should not follow the event. The fact that the Court of Final Appeal did not make any specific costs order when ordering the inquiry, in my view, means that the Court of Appeal leaves the question of costs to the discretion of the Master hearing the inquiry.

Orders

6. I therefore order that the nisi costs order made on 14th March 2000 be made absolute.

7. As the Plaintiff is unsuccessful in this application for review, I further order that costs of the application be borne by the Plaintiff, to be taxed if not agreed, with certificate for counsel.