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FACV No. 1 of 2016
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 1 OF 2016 (CIVIL)
(ON APPEAL FROM CACV NO. 243 OF 2014)
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BETWEEN
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COMPANIA SUD AMERICANA DE VAPORES S.A. |
Plaintiff/
Appellant |
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and |
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HIN-PRO INTERNATIONAL LOGISTICS LIMITED |
Defendant/
Respondent |
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| Before : Chief Justice Ma, Mr Justice Ribeiro PJ,
Mr Justice Tang PJ, Mr Justice Fok PJ and
Lord Phillips of Worth Matravers NPJ |
| Date of Judgment : 13 January 2017 |
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JUDGMENT ON COSTS
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The Court:
1. CSAV seeks an order that Hin-Pro pay all its costs here and below. In doing so it relies on the principle that, in the absence of special circumstances costs should follow the event. CSAV submits that it has succeeded on all three questions of public importance in respect of which permission to appeal was given and on the “or otherwise” ground.
2. Hin-Pro submits (i) that CSAV should only recover half of the costs incurred in this Court and below and (ii) should pay Hin-Pro’s costs in relation to the grant and discharge of the Receivership Orders.
3. As to (i) Hin-Pro rely on the fact that the damages to which these proceedings relate are likely to be very much smaller than was anticipated when the proceedings were commenced. We do not consider that this fortuity is any reason for departing from the usual order as to costs.
4. Hin-Pro also submits that CSAV has succeeded on arguments that were not advanced below. We do not agree. The important issues that have been resolved by this Court have always been at the heart of this litigation.
5. In relation to (ii) Hin-Pro relies upon the fact that CSAV did not seek to revive the Receivership Order before this Court. In the courts below the Receivership Order stood or fell with the other relief. It had no significant impact on the costs incurred.
6. In these circumstances we can see no reason for departing from the usual order. We consider that the issues raised on this appeal justified the employment of two counsel[1]. Accordingly we would make the following order, as sought by CSAV:
Costs of and occasioned by this appeal, including the costs of the application for leave to appeal and costs below including costs of CSAV’s application for a stay of execution before DHCJ Wilson Chan and the Court of Appeal and all costs reserved, be paid by Hin-Pro to CSAV, to be taxed if not agreed, with certificate for two counsel.[2]
(Geoffrey Ma)
Chief Justice |
(R.A.V. Ribeiro)
Permanent Judge |
(Robert Tang)
Permanent Judge |
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(Joseph Fok)
Permanent Judge
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(Lord Phillips of Worth Matravers)
Non-Permanent Judge
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Written submissions by Mr John Scott SC and Ms Frances Lok, instructed by Stephenson Harwood, for the Appellant
Written submissions by Mr George Chu, instructed by Damien Shea & Co., for the Respondent
[1] As the Court has previously indicated, it is not necessary for a party in whose favour a costs order is made to obtain a certificate to this effect (Hebei Enterprises Ltd v Livasiri & Co (A Firm), FACV 25/2007, unrep., Judgment on Costs (5 December 2008) at [4], HKSAR v Pang Hung Fai (No.2) (2015) 18 HKCFAR 1 at [10-15], and Moral Luck Finance Limited v Cheung Kwai Yin, FACV 5 & 6/2015, unrep., Judgment on Costs (11 September 2015) at [4]). Had the application been solely for such certification, the costs of seeking the certificate would have been disallowed.
[2] For the avoidance of doubt, such costs include the costs of making submissions in relation to costs.
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