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FACV No. 1 of 2008
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 1 OF 2008 (Civil)
(ON APPEAL FROM CACV No. 227 of 2005)
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Between:
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KUNG MING TAK TONG CO LTD |
Plaintiff
(Appellant) |
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- and - |
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PARK SOLID ENTERPRISES LIMITED |
1st Defendant
(1st Respondent) |
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INFO KING LIMITED |
2nd Defendant
(2nd Respondent) |
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Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Lord Millett NPJ
Date of Judgment: 5 December 2008
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JUDGMENT ON COSTS
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Mr Justice Ribeiro PJ :
1. This is the judgment of the Court on costs. The Court also addresses a difference which has arisen between the parties as to the implementation of its Order.
Costs
2. On 8 September 2008,[1] the Court allowed the appeal and made an order nisi that the respondents should pay to the appellant its costs here and in the courts below to be taxed if not agreed. Written submissions on costs have now been received from both parties.
3. The 2nd respondent invites the Court to make a different order. Citing well-known passages in Re Elgindata Ltd (No 2) [1992] 1 WLR 1207, it argues that the appellant in fact failed on issues which caused a significant increase in the length and costs of the proceedings; and/or that it raised issues improperly or unnecessarily. The 2nd respondent contends in particular that it was completely unnecessary for the appellant to attempt to undermine the long established system of co-ownership in multi-storey properties by an argument that took up much of the appeal. The Court is asked to order each party to bear its own costs or, alternatively, to deprive the appellant of at least 50% of its costs.
4. Despite the careful and comprehensive submissions advanced on the 2nd respondent’s behalf, we are not persuaded that this is a case where the general rule that costs should follow the event has been displaced.
5. While it is true that the appellant failed in its contention that it was entitled to an easement as against co-owners of property in the multi-storey building concerned, that argument was not wasted. The Court accepted that many of the concepts and authorities relevant to it were applicable by analogy to contractual quasi-easements. It was on such basis that the decisions below were overturned and a contractual quasi-easement established over the Entrance Lobby in favour of the second and third Floors. And, of course, the appellant succeeded in reversing the decisions below in respect of Shop 2B-2 on the basis of a derogation from grant. We therefore direct that the Order Nisi as to costs be made Absolute.
Implementation of the Court’s Order
6. The Court granted a declaration that the appellant, by virtue of its rights acquired as owner under the relevant assignments in respect of the second and third floors is entitled, together with its successors-in-title, etc, “to a right of way ... from and to the external public walkway on the first floor over the Entrance Lobby, including the staircase giving access to the said second and third floors”. We directed “that a plan showing the aforesaid Entrance Lobby and staircase marked out in colour be annexed to the draft Minutes of Order after agreement, if possible, between the parties, to be submitted for approval by a single Permanent Judge”.
7. By letter dated 3 October 2008, solicitors for the appellant duly lodged a draft order attaching a plan with the whole of the Entrance Lobby coloured blue for the Court’s approval. By letter dated 6 October 2008, solicitors for the 2nd respondent informed the Court that their clients did not agree with the plan as marked and submitted a revised version showing the Entrance Lobby marked blue but with an oblong-shaped area within it coloured black. It was suggested that the right of way was over the Entrance Lobby, excluding the part coloured black. There was no other objection to the appellant’s draft order.
8. We see no basis for the 2nd respondent’s plan. As we stated in the Judgment (§§53-54) the right of way is over the Entrance Lobby, not over some part of it left over after carving out the area coloured black on the revised plan. We also explained (§55) that the question of any infringement of that right was not a matter for determination by the Court. Any alleged infringement would turn on questions of fact and degree and would have to be dealt with by a fresh action.
9. The Order as drafted by the appellant with the plan annexed thereto is hereby approved.
(Andrew Li)
Chief Justice |
(Kemal Bokhary)
Permanent Judge |
(Patrick Chan)
Permanent Judge |
(RAV Ribeiro)
Permanent Judge |
(Lord Millett)
Non-Permanent Judge |
Written submissions by Mr Benjamin Chain (instructed by Messrs Peter Lau & Co) for the appellant
Written submissions by Ms Liza Jane Cruden (instructed by Messrs Lo, Wong & Tsui) for the 2nd respondent
[1] [2008] 5 HKLRD 441.
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