INCORPORATED OWNERS OF MIRADOR MANSION v. TECOWIN DEVELOPMENT LTD.

HCA4069 of 1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. A4069 OF 1996

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J U D G M E N T

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1. I made an order nisi on costs. That I did not because I considered costs to be straightforward and because I thought it might save some costs. I would have preferred to defer the question of costs until after I have had the benefit of counsel's submissions. Now, of course, I have had helpful submissions from both counsel.

2. Generally, costs should follow the event, however, if a successful party has raised issues on which he fails and which has caused a significant increase in the length or costs of the proceedings, he may be deprived of the whole or part of his costs. This is so, even though, as here, the issue was properly raised.

3. The Plaintiff's case on restrictive covenant was unsuccessful. I do not think it matters that they only failed because they had no standing. The restrictive covenant was a discrete issue in the proceedings and the relief sought relying on the restrictive covenant was a discrete relief.

4. The claim based on the restrictive covenant had made a significant increase in the length and costs of the proceedings but the more difficult question is by how much. Mr. Wong has submitted that a discount of 50% is too much. He has suggested that the most that I should do is to deprive the Plaintiff of 25% of the costs. Now, as has been demonstrated in the written submission of Mr. Wong, only one and a half out of the six days of the hearing was taken up by the restrictive covenant. That of course was 25% of the trial time. But he has also reminded me that costs included not just the costs of the hearing but also the pre-trial costs, and I think it is fair to say that it is unlikely, that the restrictive covenant issue would have taken up 25% of the pre-trial costs. Of course, the Plaintiff had also failed on their claim based on nuisance which took very little time and they had also failed on their claim for a mandatory injunction to remove the partition wall but that took up even less time.

5. Mr. Yip has submitted that there are essentially five issues and that the Defendant had succeeded on (3). I do not think it is right for one to keep a precise score board and then decide who has succeeded on which factual or legal issue. I think a similar approach was taken by counsel. In Re Elgindata Ltd. (No. 2) [1992] 1 W.L.R. 1207 and that was rejected by Lord Justice Nourse in his judgment. I believe one should take a broad view of the matter. Doing so, plainly the issues between the parties were: first, whether the lower level was common area, secondly, whether in relation to the rest of the roof the Defendant was liable to the Plaintiff because of the restrictive covenant, and thirdly, whether in relation to the rest of the roof the Defendant was liable to the Plaintiff under the deed of mutual covenant. The Plaintiff had succeeded on the first and the third issues.

6. So doing the best that I can, I have come to the conclusion that it will not be right for me to deprive the Plaintiff of more than 25% of their costs. That being the case, I make an order that the Plaintiff should have 75% of the costs of the proceedings.