CACV 27/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 27 OF 2010

(ON APPEAL FROM LDGA NO. 224 OF 2004 AND

LDRA NO. 358 OF 2004 (CONSOLIDATED))

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LDGA 224/2004

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

GOVERNMENT RENT APPEAL NO. 224 OF 2004

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BETWEEN

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LDRA 358/2004

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

RATING APPEAL NO. 358 OF 2004

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BETWEEN

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J U D G M E N T

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Hon Rogers VP:

1.  This is an application to vary the costs order that was made nisi when the decision in this case was handed down. The costs order nisi was that the Commissioner should have the costs both here and in the Lands Tribunal.

2.  On this occasion, Mr Lam SC has put forward two arguments which he says justify a variation of that costs order.  The first is that there was an interim payment of some $188 million at a very early stage in the proceedings before the matter came to be heard and, although that does represent, we are told, approximately 28 per cent of the amount which was in dispute between the parties, nevertheless, as Mr Yu SC has pointed out, that reduction, or the necessity for that reduction, was based on the evidence and the case put forward by the Commissioner herself.  It was not based at all upon the case which the applicant was putting forward.

3.  So in that circumstance, I do not see that the costs order should be varied for that reason.

4.  The other argument was that there was a great deal of evidence and some argument during the course of the proceedings before the Lands Tribunal in respect of the contractor’s basis.

5.  It only needs to be said that Mr Lam’s point is that the applicant raised the contractor’s basis because of something which the Commissioner had been putting forward.  Even if that be right, the answer to the application which is made today is quite simple.  The applicant went on arguing about the contractor’s basis even after those acting for the Commissioner had made it perfectly clear that it was not her case and that it was considered no longer relevant.  Since the applicant chose to go on arguing the point and it occupied some part of the decision of the Lands Tribunal, namely paragraphs 171 to 194, I cannot see that this court should make any variation of the order on the basis that somehow or other the applicant was misled into raising a case on that basis.

6.  I would therefore not alter the costs order nisi which has already been made.

Hon Le Pichon JA:

7.  I agree.

Hon Stone J:

8.  I also agree.