PAQUITO LIMA BUTON v. RAINBOW JOY SHIPPING LTD INC

FACV No. 26 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 26 OF 2007 (Civil)

(ON APPEAL FROM CACV No. 243 of 2006)

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JUDGMENT ON COSTS

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Mr Justice Ribeiro PJ:

1.  This is the Judgment of the Court.

2.  On 28 April 2008, the Court allowed the appellant’s appeal and made a costs order nisi in favour of the appellant here and in the courts below. 

3.  The respondent lodged submissions dated 9 May 2008 contending that the Court should make a different order, namely, that the respondent should pay the appellant’s costs limited to his costs in the District Court, with no order as to costs in the Court of Appeal and in this Court.  By submissions dated 23 May 2008, the appellant contends that the costs order nisi should be made absolute.

4.  Leave to appeal was given on two issues, referred to in the Judgment as the arbitration agreement point and the exclusive jurisdiction point respectively.  The appellant succeeded on both points.  In the courts below, the arbitration agreement point had not been taken, it having been erroneously conceded that the respondent was party to a valid arbitration agreement.

5.  This concession is relied on by the respondent as the basis of its present submission.  It seeks to argue “that the matter would never have come to the Court of Final Appeal, or indeed the Court of Appeal, had the arbitration clause point been taken at first instance.”  It is suggested that the costs of the appeals “arose really from what has now been decided to have been the wrong concession made by the appellant as to the existence of a binding arbitration clause.”

6.  We are not persuaded by that submission.  These proceedings all stem from respondent’s decision to launch a stay application based on its assertion, maintained throughout, that the appellant was bound by an arbitration clause.  It is untenable for the respondent to blame the costs of such proceedings on the appellant’s failure to point out the error of the stance it was itself taking.  In any event, the respondent lost on both points, including the exclusive jurisdiction point upon which it had succeeded in the Court of Appeal and which it sought to sustain in this Court. 

7.  We direct that the costs order be made absolute.  We also direct that the appellant’s costs be taxed in accordance with the Legal Aid Regulations.