CHENG SAU CHING, HELENA and Another v. FLEETWOOD INVESTMENT LTD.

Case No: A4524 of 1992.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. On 19 October 1994, I handed down a judgment in this matter in which I dismissed claims by the plaintiffs for a declaration, mandatory and prohibitory injunctions, damages, including exemplary damages, and interest in connection with a dispute over a right of way. I concluded that judgment by saying that each of the parties may be entitled to part of their costs and that I would hear counsel on this. I have now heard counsel.

2. Until 29 July 1994, the defendant disputed the existence of the right of way vested in the plaintiffs. On that date, the defence and counterclaim were re-amended to admit the right of way. Counsel are agreed that each of the parties should have a proportion of their costs up to 29 July 1994. Miss Yuen, who appears for the plaintiffs, argues that the plaintiffs should bear only two-thirds of the costs incurred before 29 July 1994 and the defendant one-third. Mr Yu, who appears for the defendant, says that perhaps a split of three-quarters and one-quarter might be fairer, but he did not press this strongly. I agree that a two-thirds/one-third split is reasonable. Accordingly, I order that the plaintiffs pay two-thirds of the defendant's costs up to 29 July 1994 and that the defendant pay one-third of the plaintiffs' costs up to that date. Counsel are agreed that there should be a certificate for two counsel, and I so order.

3. There remains the matter of the costs of an application by the plaintiffs for interlocutory injunctions claimed in a summons dated 20 July 1992. The application was disposed of on 25 August 1992 by a consent order under which, upon certain undertakings by counsel for the defendant, there was an order for a speedy trial and the costs were reserved. The undertakings given were to the effect that "the plaintiffs' claim for a mandatory injunction should not be effected by the plaintiffs electing not to proceed with the application for an interim injunction" and that the defendant would not rely on any additional hardship occasioned by the defendant continuing with its construction on the site.

4. In their summons of 20 July 1992, the plaintiffs prayed that the costs of the application be the plaintiffs' costs in the cause, which would be the usual order where the plaintiff is successful in obtaining an interlocutory injunction, although there are instances where the courts may depart from this, making both parties' costs as costs in the cause. Miss Yuen submits that the plaintiffs were substantially successful in the application in that they obtained undertakings that preserved the status quo until trial. They also, it has been pointed out by Mr Yu, avoided having to give the usual undertaking as to damages, which, on my findings at the trial, was to their advantage. I do not know, of course, what would have happened if the consent order had not been made. The right of way was in dispute at that time, and a consequences of granting interlocutory injunctions, particularly one requiring the defendant to undo what it had already done, would have been very serious. If the right of way had not been in dispute, the plaintiffs' case would have been stronger. Mr Yu urges me to look at the matter with hindsight; to say, in effect, because I did not grant the injunctions after trial, I should find that the injunctions would not have been granted at the interlocutory stage. Miss Yuen says that this is not the correct approach; I should look to see if, at the time, the plaintiffs acted reasonably in moving for an injunction. At this time, the plaintiffs were asserting a right of way, which, although it was admitted later, was not accepted by the defendant then. The defendant did make suggestions to placate the plaintiffs, but these were vague and I do not think the plaintiffs acted unreasonably in failing to accept them as they were.

5. I have given thought to the arguments raised by both counsel. There is substance in the submissions made by both of them. I must say that I have not found the decision easy in this matter, but, in the end, I have concluded that the justice and fairness of the matter would be best served by making no order as to the costs of the interlocutory application and that there should no order as to the costs of this hearing.