KWAN YUEN MEI v. LAU SUI YUEN

CACV 15/2016 AND CACV 16/2016

[2018] HKCA 829

CACV 15/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 15 OF 2016

(ON APPEAL FROM HCPI NO 569 OF 2009)

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AND

CACV 16/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 16 OF 2016

(ON APPEAL FROM HCPI NO 570 OF 2009)

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DECISION ON COSTS

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Hon Kwan JA (giving the decision on costs of the Court):

1.  On 17 August 2017, this court dismissed the appeal of Madam Kwan Yuen Mei (the plaintiff in HCPI 569 and 570/2009) in CACV 15 and 16/2017. In CACV 15/2017, we ordered the plaintiff to pay the costs of the defendant in the appeal. In CACV 16/2017, we ordered her to pay the costs of the 2^nd and 5^th defendants in the appeal.

2.  By a letter to the court dated 23 October 2018 from the defendants’ solicitors, P C Woo & Co, the solicitors sought clarification from this court as the costs orders we made on 17 August 2017 did not specifically deal with the costs reserved by another division (Lam VP and Poon JA) in HCMP 3045 and 3046/2015 on 22 January 2016.  By the earlier judgment on 22 January 2016, the Court of Appeal granted extension of time to the plaintiff to appeal against the order of Lok J only in respect of the dismissal of both HCPI 569 and 570/2009 for want of prosecution and abuse of process of the court and the rest of the plaintiff’s application was refused.  By paragraph 4 of the orders made on 22 January 2016, it was ordered that “costs of the plaintiff’s application are reserved”.  The plaintiff proceeded to file notices of appeal on 28 January 2016, and both appeals (CACV 15 and 16/2016) were dismissed by this court on 17 August 2017.

3.  The defendants’ solicitors sought clarification from this court whether the costs awarded to the defendants in dismissing the plaintiff’s appeals would include all reserved costs in HCMP 3045 and 3046/2015.

4.  We have considered the response of the plaintiff in her letter to the defendants’ solicitors dated 1 November 2018.  She objected to the inclusion of the reserved costs as part of the costs awarded to the defendants on dismissal of her appeals.

5.  We see no reason why the reserved costs should not be included.  By our judgment of 17 August 2017, we upheld the decision of Lok J in dismissing HCPI 569 and 570/2009 for want of prosecution and abuse of process of the court.  The defendants should recover their costs in the leave application before the Court of Appeal as even though leave to appeal out of time was granted in respect of the dismissal order, ultimately the plaintiff’s appeals have been dismissed by this court.