CHAN SHUN KEI t/a CHAN SHUN KEI CONSTRUCTION WORKS v. HONG KONG CONSTRUCTION (HONG KONG) LTD (FORMERLY KNOWN AS HONG KONG CONSTRUCTION (HOLDINGS) LTD)

HCCT 2/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 2 OF 2011

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D E C I S I O N

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1.  Leave to appeal will only be granted if the party seeking leave can establish that the proposed appeal has reasonable prospects of success. In respect of an appeal against costs, which are within the discretion of the court, it is trite that the Court of Appeal will only intervene if it can be shown that the judge failed to exercise his discretion, or had exercised his discretion upon a false principle, or did not exercise it judicially, or the exercise of discretion was demonstrably flawed (Choy Yee Chun (PR of the estate of Chan Pui Yiu) v Bond Star Development Ltd [1997] HKLRD 1327.

2.  I am not satisfied that it has been shown that in making the costs order as to liability and quantum, the judge had erred in principles, or had taken into account irrelevant matters, or had failed to consider relevant matters, or that the discretion was exercised under a mistake of law or a mistake as to facts.  The general rule is that costs should follow the event, but it is trite that the court may depart from such general rule where the circumstances justify such exceptional course (Mariner International Hotels Ltd v Atlas Ltd (No 2) (2007) 10 HKCFAR 246).  The judge in this case considered (as he was entitled to do) the amount originally claimed by the plaintiff, the amount actually recovered, the conduct of the parties leading up to the trial on quantum, and made the order which he did.

3.  As Woo JA observed in Ho Shu Kwong v Chiang Chun Yuan [2002] 3 HKLRD 419, the trial judge has the advantage of personal experience of the proceedings and is in a better position than the Court of Appeal to assess the conduct of the parties and the way in which they pursued their case.  The reasons for the costs orders made by the learned judge are adequately set out in paragraphs 87-93 of the Judgment of 7 April 2014.

4.  I consider that the proposed appeal has no reasonable prospect of success, and refuse leave with costs.