QUESTNET LTD v. KURT GEORG ROCCO RINCK AND ANOTHER

HCA 1475/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1475 OF 2006

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D E C I S I O N

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1.  The 2nd defendant sent a letter to this court by fax last night at 8.18 pm.  He wanted to withdraw his appeal by letter.  He said in the letter that he withdrew the appeal after taking advice from senior counsel.  Senior counsel’s advice concurred with the plaintiff’s submissions on the merits.  Since the appeal was not meritorious, he was happy to have it withdrawn.

2.  I also take the view that the appeal has no merit.  I see no reason why it should be withdrawn and I would order it to be dismissed, as the 2nd defendant is also happy to have it dismissed.

3.  On the question of costs, the 2nd defendant said in his letter that he launched this appeal in time.  At the same time, he sought advice from senior counsel.  He received such advice on 27 October.  He then sought clarification on the 29th and he received it late yesterday afternoon.  He then informed the court that he wanted to withdraw the appeal.  By that time he had already received the skeleton submissions from the plaintiff’s counsel.

4.  I accept that he had some misunderstanding as to the need for lodging the appeal.  I do not think the appeal was lodged out of bad faith or for the purpose of abusing this court’s procedure.  I think he lodged the appeal in good faith, although under a misunderstanding.  He wanted these matters to be taken into account on the question of costs.

5.  I have considered all these matters.  However, I do not think I am persuaded to deviate from the usual course, that is, to order costs to follow the event.  I therefore dismiss the appeal and order the 2nd defendant to pay the costs of the appeal.  But I do not order the higher than usual scale of taxation.  I only go by the usual party and party taxation because I do not think there is a deliberate attempt to abuse the procedure of the court.  As I have said, the appeal is not lodged out of bad faith.  It is lodged out of misunderstanding.

(Submissions on quantum of costs)

6.  I apply gross assessment of the costs at $32,000.