LUO XING JUAN ANGELA v. THE ESTATE OF HUI SHUI SEE, WILLY, DECEASED AND OTHERS

FACV No. 32 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 32 OF 2007 (Civil)

(ON APPEAL FROM CACV No. 381 of 2004)

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JUDGMENT ON COSTS

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Mr Justice Ribeiro PJ :

1.  This is the Judgment of the Court as to costs.

2.  On 16 June 2008, the Court dismissed the appeal brought by Glory Rise, and Miss Hui (acting for herself and as representative of her deceased brother’s estate).  The Court affirmed the orders of Kwan J and of the Court of Appeal although it did not agree with the legal analysis adopted below and arrived at its conclusion adopting a different approach.  The same evidence and findings provided the foundation for the decisions both here and below.  The net result in each court was also the same: The appellants’ claim for possession of the flat and mesne profits was dismissed.  Glory Rise was to be wound up and the flat it owned sold by the liquidator, with the respondent, Miss Luo, entitled to 35% of the net proceeds of sale. 

3.  A costs order nisi was made in favour of Miss Luo.  Written submissions have since been received from the parties, with the appellants inviting the Court to make an order more favourable to them to reflect the altered basis upon which the appeal in this Court was upheld.  The respondent submits that the Court should properly direct that the order nisi in her favour be made absolute.

4.  In our view, the fact that this Court’s decision altered the legal foundation for the orders made below is insufficient in itself to displace the usual rule that costs follow the event – an “event” which involved the respondent having the winning case at every level of court.   However, as counsel for the appellants points out, introduction of the successful promissory estoppel argument did lead to an adjournment (as noted in paragraph 7 of the judgment) and quite probably caused the prolongation of the hearing before the Court by one day.

5.  In these circumstances, we consider it a proper exercise of the Court’s discretion to order that the respondent is to have all the costs of the proceedings here and below (to be taxed if not agreed), except that she should pay and have set off against her entitlement to costs, the costs of and occasioned by the second day’s hearing before this Court.  For the avoidance of doubt, the appellants’ costs which should be set off against the respondent’s overall entitlement are the costs of preparing the additional written submissions on promissory estoppel, counsel’s refresher and the costs of attendance on behalf of the appellants’ solicitors, to be taxed if not agreed.