JEANNY HELENA FRANSLAY v. SY CHIN MONG STEPHEN AND OTHERS

HCCT 38/2018

[2019] HKCFI 2330

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 38 OF 2018

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D E C I S I O N

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1.  The appeals have been withdrawn this morning and the court has already given leave for the applicants (2^nd and 3^rd Defendants) to do so. The only outstanding matter is one of costs. There cannot be any serious argument that generally a party who applies, especially at a very late stage, to withdraw his application has to bear the costs of the other side insofar as that application is concerned. The arguments here boil down to whether it is justified for the respondent (Plaintiff) to instruct counsel at a very late stage to deal with these matters.

2.  First and foremost, I believe that the applicants have themselves to blame when it came to withdrawing their applications at a very late stage.

3.  On the other hand, it is reasonably clear that by 28 August 2019, the very day when counsel was instructed by the Plaintiff, the position was reasonably clear that the appeals were not going to be pursued and the only outstanding argument was one of costs.

4.  I have to bear in mind also that the suggestion by the applicants at the material time was that they would like to put an end to the appeals and have their costs exposure limited.  Therefore, it must have been reasonably clear by the 28 August 2019 that the argument could only be confined to costs.

5.  I find that in the circumstances it is a little harsh and unreasonable for the Plaintiff to have instructed counsel to deal with the matter, and I therefore agree with the applicants that the costs should not include the costs of instructing counsel.  I make an order that costs of and occasioned by these appeals, with the exception of the costs of instructing counsel, be paid by the 2^nd and 3^rd Defendants.