YIFUNG DEVELOPMENTS LTD v. LIU CHI KEUNG RICKY AND OTHERS

CACV 476 /2019

[2021] HKCA 1915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 476 OF 2019

(ON APPEAL FROM HCA NO 3020 OF 2015)

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DECISION ON COSTS

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Hon Kwan VP (giving the Decision on Costs of the Court):

1.  On 4 November 2021, we handed down our judgment in which we allowed in part the defendants’ appeal against the decision of K Yeung J on 10 September 2019. We made these costs orders nisi: (1) for the costs below, we set aside the judge’s order and substituted this with an order that the defendants are to pay two-thirds of the costs of the third party, with a certificate for two counsel; (2) for the costs of the appeal, we ordered the third party to pay 50% of the defendants’ costs, with a certificate for two counsel.

2.  On 17 November 2021, the third party issued a summons to vary the costs order nisi in respect of the appeal, seeking an order that there should be no order as to costs.

3.  Notwithstanding that the third party only successfully resisted the defendants’ appeal on two grounds out of three, Mr Maurellet, SC submitted that instead of ordering the third party to pay 50% of the defendants’ costs, the most appropriate and just order should be no order as to costs of the appeal.  He contended that the third party is in substance the successful party, and, at best, the appeal may be said to be a draw.

4.  We do not accept his submissions.  We do not agree with him that the third party should be regarded as the successful party on appeal, and see no justification to deprive the defendants of part of the costs of this appeal.

5.  We dismiss the third party’s application to vary the costs order nisi of the appeal.  Costs of this application should follow the event.  We make an order nisi that the third party is to pay the defendants’ costs of this application, with a certificate for two counsel.