LEE THEATRE REALTY LTD v. TONG WAH JOR AND OTHERS

CACV 279/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 279 OF 2009

(ON APPEAL FROM HCA NO. 1251 OF 2003)

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BETWEEN

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JUDGMENT ON COSTS

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Hon Cheung JA (giving judgment of the Court) :

1.  The defendants ask for the costs of the appeal and below.

2.  The plaintiff, likewise, asks for the costs of the appeal and below, alternatively 90% of the costs of the appeal and below.

3.  In the Court below the plaintiff succeeded in the entirety of its claim in respect of the lane and the defendants failed in their counterclaim on adverse possession.

4.  In this Court, although the defendants succeeded in the appeal, it was confined to a very small part of lane, the exact area is based on a concession made by the plaintiff at the closing submission in the Court below.  Nonetheless the defendants had to come to this Court in order to overturn the judgment below.  It was the successful party.  On this basis, we are of the view that the defendants are entitled to 25% of the costs of the appeal.

5.  Had the Court below found for the defendants on the same basis as our judgment, the plaintiff would have succeeded substantially there.  In our view the plaintiff is entitled to 90% of the costs below.