KAM TO PUI v. THE INCORPORATED OWNERS OF LUX THEATRE BUILDING AND OTHERS

HCA 646/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 646 OF 1996

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R U L I N G

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1. This is my ruling as to costs.

2. This action has involved a strip of land which runs alongside Lux Theatre Building in a private side lane known as Wu Kwong Street. In my written judgment, I divided it into two areas - the "outer area" which is closest to the Baker Street end of Wu Kwong Street, and an "inner area" which is further away.

3. In his Statement of Claim, the Plaintiff claimed (inter alia) declarations that the 1st defendant's title to the whole strip of land had been extinguished and that he was the lawful owner and occupier of the land subject only to the rights of the Government. Further he sought a permanent injunction restraining the Defendant from entering on or interfering with the whole strip of land.

4. In my judgment, I found that the Plaintiff was entitled to the relief he sought in respect of the inner area but not the outer area.

5. The 1st Defendant, on the other hand, counterclaimed against the Plaintiff for an order for possession of the whole strip of land, an order that the Plaintiff remove all articles and structures from the land, an injunction against the Plaintiff from occupying the land and damages for trespass to be assessed.

6. I find that the 1st Defendant has succeeded in its counterclaim in respect of an order for possession of the outer area and for damages for trespass to be assessed in respect of the outer area but not the inner area. In view of my findings as to title, the injunction sought by the 1st Defendant is not necessary. The Plaintiff has conceded that nothing on the outer area belongs to him and the 1st Defendant accepts that.

7. The issues both on the claim and the counterclaim have been the same.

8. Mr Lam for the 1st Defendant has conceded that, in his view, it would be appropriate for there to be no separate order as to costs on the counterclaim if the order for costs on the claim fairly reflected the relative success of the parties on the issues before the Court.

9. I agree with that approach.

10. The two areas of land were readily distinguishable for the purpose of the trial.

11. I find that the majority of the trial was spent on issues on which the Plaintiff was successful in particular the commencement of the Plaintiff's occupation of the land and the extent of that occupation. The Plaintiff was also successful on the issue of whether he occupied the land as a licencee. Having said that, the question of the outer area and whether the 1st Defendant had been ousted from possession of it by the Plaintiff nonetheless occupied a significant proportion of the trial.

12. I recognise that any apportionment of costs on the basis of times spent on particular issues is likely to be somewhat rough and ready but in my view, a figure of 25% would reflect a fair approximation of the proportion of the trial spent upon issues upon which the 1st Defendant was successful.

13. I, accordingly, order that the Plaintiff's costs be taxed and 75% of such costs as are attributable to the Plaintiff's claim against the 1st Defendant be paid by the 1st Defendant. On the basis I referred to previously I make no order as to costs on the counterclaim. I order that the Plaintiff's costs be taxed in accordance with the Legal Aid Regulations.

14. The final part of my order is to make an order in terms of the draft submitted by the Plaintiff as amended. The amendments are those that had been put in by Mr Merry and I have added after the words "and utility conduits which now run under the said land" the words "and of necessary access to the said land for the purpose of maintenance and repair of the Lux Theatre Building".

15. Insofar as page 2 of the Draft Order is concerned, I amend that to read "And it is ordered that the 1st Defendant pay the Plaintiff's 75% of his costs of this action to be taxed if not agreed".