CHINA VENTURETECHNO INTERNATIONAL CO LTD v. NEW CENTURY CHAIN DEVELOPMENT CO LTD t/a CENTURY CHAIN PROPERTY AGENCY

HEADNOTE

          A judge in chambers hearing an appeal from a master as to costs only should decline to exercise his discretion afresh unless the master's exercise of discretion had so demonstrably miscarried that the matter had to be approached afresh. That does not involve the judge curtail his own appellate jurisdiction. All that it involves is the judge approaching the exercise of that jurisdiction in the traditional way where costs are concerned. On their own best interests as much as anything else, litigants often need to be discouraged from frittering away new costs on old costs.

IN THE COURT OF APPEAL

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JUDGMENT

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Bokhary JA:

1. On December 18, 1995, Mr Registrar Betts, having ordered that the plaintiff's action be dismissed unless it answered certain interrogatories by a certain time, dealt with costs by awarding them to the defendant with a certificate for counsel.

2. The plaintiff was dissatisfied with that order as to costs. First, it was dissatisfied that the award was unqualified by the formula "in any event" with the result that the defendant could proceed to taxation and recovery at once. Secondly, it was dissatisfied that a certificate for counsel had been granted.

3. So the plaintiff appealed to a judge in chambers. And that appeal came before Woo J on January 11, 1996.

4. The judge allowed the appeal to the extent of qualifying the Registrar's award of costs by the formula "in any event", in other words, he turned the costs from immediate costs to delayed costs.

5. But he refused to set aside the certificate for counsel.

6. Now the defendant appeals to this Court, asking us to remove the formula "in any event" added by the judge to the Registrar's award of costs in its favour.

7. And the plaintiff cross-appeals, asking us to do what the judge refused to do i.e. set aside the certificate for counsel granted by the Registrar to the defendant.

8. Earlier this morning, we granted leave to appeal and the cross-appeal.

9. The judge had accepted, in effect, that he should decline to exercise his discretion afresh as to costs unless the Registrar's exercise of discretion had so demonstrably miscarried that the matter had to be approached afresh.

10. Here the judge was plainly right. In no way had he, as Mr Law for the plaintiff submits, curtailed his own appellate jurisdiction. All that the judge was doing was to approach the exercise of that jurisdiction in the traditional way where costs are concerned. In their own best interests as much as anything else, litigants often need to be discouraged from frittering away new costs on old costs. The present case illustrates that need.

11. So the judge recognized the right test. But it is submitted by Mr Chan for the defendant that the judge, in delaying the award of costs made by the Registrar in favour of the defendant, had arrived at a result which was unwarranted by the facts.

12. The judge thought along these lines. There were two applications before the Registrar that day. Both had been taken out by the defendant. One was for the discovery, while the other was for an unless order in regard to interrogatories. In refusing discovery, the Registrar awarded only delayed costs against the defendant and withheld a certificate for counsel. But in granting the unless order in regard to interrogatories, the Registrar awarded immediate costs against the plaintiff and granted a certificate for counsel. The difference was unjustified in relation to the timing of costs but was justified in relation to a certificate for counsel. That was the judge's thinking.

13. There is no need to prolong this judgment. We have looked at this matter with care; and the conclusion to which we have come is simply this: there was no warrant for interference with any part of the Registrar's order as to costs including the matter of a certificate for counsel. After all, in awarding the defendant immediate costs and giving it a certificate for counsel, the Registrar was acting in circumstances strong enough to justify an unless order in its favour.

14. In the result, we allow the appeal and dismiss the cross-appeal. The Registrar's award of immediate costs to the defendant is restored, and the certificate for counsel which he granted it stands.