LEUNG KWAI LING v. HONGKONG LAND LTD AND ANOTHER

HCMP 699/2014 and
CACV 260 & 261/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 699OF 2014

(ON AN INTENDED APPEAL FROM HCA NOS. 1582 OF 2011,

366 OF 2012, 1324 OF 2012, 347 OF 2013 AND 432 OF 2013)

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BETWEEN

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 260 AND 261 OF 2013

(ON APPEAL FROM HCA NOS. 347 AND 432 OF 2013)

HCA 347/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 347 OF 2013

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BETWEEN

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AND

HCA 432/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 432 OF 2013

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BETWEEN

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  On 21 July 2014, this court refused to grant extension of time to the Plaintiff to appeal and dismissed her summons of 25 March 2014. In light of that decision, at para 27 of the judgment, the court invited parties to consider disposal of CACV 260 and 261 of 2013 and the summons of 5 May 2014.

2.  Solicitors for the Defendants lodged written submissions prepared by counsel on 4 August 2014 asking for the dismissal of the appeals and the summons with costs.   A statement of costs was also submitted.  They asked for costs in the sum of $30,600.

3.  The Plaintiff lodged her submissions on 8 September 2014.  In her submissions, she stated her position as follows:

(a) She intended to withdraw the appeals in CACV 260 and 261 of 2013 and the summons of 5 May 2014;

(b) She intended to “keep this HCMP 699 of 2014 case for future applications”; and

(c) On the costs of the Defendants, she said it should be reduced to $500 as no work has been done on the 2 appeals after the court’s decision of 21 July 2014 and the submissions of the Defendants were unnecessary.

4.  As a general rule, the court will not accept the withdrawal of appeals.  The proper practice when an appellant does not wish to proceed with an appeal is to have it dismissed with costs, see PD 4.1 para 38.

5.  As for summonses, they cannot be withdrawn without leave of the court, see Order 21 Rule 6.  The court will deal with the costs of the summons when it grants leave to withdraw, see para 21/6/1 of Hong Kong Civil Procedure 2014.

6.  As it has been stated in the judgment of 21 July 2014, the summons of 5 May 2014 cannot succeed in view of the refusal to extend time to appeal.  By the same token, the appeals in CACV 260 and 261 of 2013 cannot succeed.

7.  In the circumstances, having considered the submissions of the parties, we order:

(a) The appeals in CACV 260 and 261 of 2013 be dismissed with costs;

(b) The summons of 5 May 2014 be withdrawn with costs; and

(c) The costs of the Defendants under (a) and (b) are fixed at $17,500.  Such costs are to be paid by the Plaintiff to the Defendants.

8.  In coming to our assessment of costs, we do not agree that it was not necessary for the Defendants to incur the costs of the submissions of 4 August 2014.  It may be otherwise had the Plaintiff indicated shortly after the judgment of 21 July 2104 that she would abandon the two appeals and the summons of 5 May 2014.  But she did not do so.  Thus, the Defendants were entitled to incur the costs for the preparation of the submissions.  Further, the costs also included some of the costs incurred by the Defendants in the appeals prior to the judgment of 21 July 2014.   Though we regarded the costs claimed in the statement of costs as excessive, we do not accept the submission that the Defendants should only get $500.  We have accordingly reduced the costs to $17,500.