XCHRX NIKKO BOEKI KABUSHIKI KAISHA v. MOTIVASIA HONG KONG LTD. AND ANOTHER and JOHN MICHAEL TATHAM (Third Party)

HCA12870/95

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.12870 OF 1995

---------------

_________________________________

JUDGMENT ON COSTS

_________________________________

1. On 16th June 1999, this Court handed down judgment in this action. That judgment is, I hope, self-explanatory. The Order then made (at page 20) records that the Plaintiff's claim against the 1st and 2nd Defendants is dismissed. It also records an order nisi that the Defendants are to have the costs of this action, to be taxed if not agreed. Unfortunately, diary difficulties appear to have precluded argument upon the Plaintiff's application to vary that order nisi, and it is this application that I have heard this evening in light of the fact that the Plaintiff's appeal against the substantive judgment is but two days away. It is clearly, therefore, necessary to finalize all issues before that appeal is heard.

2. I must, of course, decide the costs issue in light of the substantive decision I have made, and nothing else. Mr Houghton agrees, and he suggests that the order should be varied thus : that as between the Plaintiff and the 1st Defendant, Motivasia Hong Kong Limited ("Motivasia"), there should be no order as to costs; and that as between the Plaintiff and the 2nd Defendant, Herald Holdings Limited ("Herald"), the costs of the Plaintiff's claim against Herald should be to Herald, but that the costs of the Counterclaim should be to the Plaintiff. The Counterclaim, I am reminded, although not formally recorded as such, focuses solely upon the Settlement Agreement, which formed the second issue which was the subject of this judgment. I take these two matters briefly in turn.

3. So far as the proposal that there should be no order as to costs against Motivasia, I find it difficult to agree with Mr Houghton because, rightly or wrongly (and he says wrongly), I have dismissed the claim against that party. Whether I be right or wrong in that regard obviously is a matter for their Lordships on Wednesday. In light of my Order, however, I can see no basis for any variation of the costs order nisi against the 1st Defendant.

4. I turn now to the 2nd Defendant, Herald. Mr Houghton in effect wants cross-orders as to costs dependent upon the resolution of the distinct issues within the case. Mr Harris objects to this approach. He says, in my view correctly, that consideration of the Settlement Agreement was all part and parcel of the broad factual matrix, and indeed I think it would have been difficult to run this case absent reference to the events of the meeting wherein the Settlement Agreement was signed. In all the circumstances, and in the exercise of my discretion, I feel unable to 'split off' the Settlement Agreement issue and arrogate to it a separate order as to costs, even though in fact I was against the Defendants' argument in terms of the construction of that Agreement.

5. The end result, therefore, is that I decline the Plaintiff's invitation to vary the order nisi, and I confirm the order as to costs in the terms expressed in the judgment.

[Counsel's submission]

6. In so far as a separate order be necessary, this application to vary the order nisi having failed, the Defendants must have the costs of this hearing also, such costs to be taxed if not agreed.

7. I thank Counsel for attending at this late hour so that this matter can be finalized.