XCHRX PROSPEROUS TONE LTD. v. PEARL FAME DEVELOPMENT LTD.

HCA 2196/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2196 OF 2000

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RULING AS TO COSTS

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1. The most significant relief sought by the Plaintiff in this action was an injunction restraining the Defendant from utilising vehicles on the access ramp of gross maximum weight exceeding 5.5 tonnes.

2. The court essentially was asked to consider whether the use of vehicles of greater maximum weight would affect the stability of the access ramp and the caisson and retaining wall which supported it. This matter and the factual issues it raised occupied the great majority of the trial and were decided in favour of the Defendant.

3. The Plaintiff was, however, successful in obtaining other heads of relief claimed. These were either admitted or occupied a relatively small portion of the trial.

4. I have borne in mind the general principle that costs should follow the event except where in a discretion of the court, some other orders should be made as to the whole or any part of the costs.

5. I am satisfied that the justice of the case will be best served by an order that the Plaintiff pay the Defendant's taxed costs of the action, save to the limited extent that the Plaintiff was successful.

6. I accordingly order that the Defendant's costs be taxed if not agreed and paid by the Plaintiff, save as follows:

(1) that the costs of the Plaintiff in obtaining the order that the Defendant do forthwith restore and/or repair the Plaintiff's railing to their original form and position before they were severed, relocated, or adjusted by the Defendant, its servants, or agents, be taxed and paid by the Defendant. For the assistance of the taxing master, the Defendant did not at the trial contest that the Plaintiff was entitled to such an order;

(2) that the costs of the Plaintiff in obtaining the order that the Defendant be restrained from further severing, removing, relocating, defacing or damage any structures belonging to the Plaintiff on the access ramp, be taxed and paid by the Defendant. The basis of the court making such an order was the finding of the Defendant was responsible for alterations to the railing, which the Defendant did not contest at trial and a finding that the Defendant was responsible for damage to the curb. By virtue of this order, the Defendant should only be responsible for costs relating to the claim for and proof of these two matters;

(3) that the costs of the Plaintiff in obtaining the order that the Defendant do forthwith at its own costs:

(i) set up check points to monitor the horizontal and vertical movements of the caisson wall and L-shaped wall of the Subject Property;

(ii) collect readings from those checkpoints; and

(iii) forward such readings to the Plaintiff's appointed surveyor in such manner, at such locations, and such intervals as directed by the Plaintiff's expert as indicated in paragraph 4, bullet point 1 and Appendix D of Exhibit "LBY-9" of Ling Po Yee's affirmation filed herein on 1st March 2000；

be taxed and paid by the Defendant.

7. The basis of the latter order was not the grounds for such relief pleaded in the Statement of Claim; namely that the continued use of vehicles with gross maximum weight in excess of 5.5 tonnes by the Defendant on the access ramp would cause and/or had caused long-term damage to the caisson wall and L-shaped wall (and by implication the rock anchors) thereby affecting the structural stability of the access ramp (which the court did not find proved). The basis for that order was evidence adduced at the trial that rock anchors should not be regarded as permanent works by reasons of the possibility of limited longevity. The costs recoverable by the Plaintiff under this head are limited to those arising from the evidence as to the limited longevity of rock anchors.

8. The costs of today are to be borne by the parties in the proportion that the Plaintiff's taxed costs payable by the Defendant, bear to the Defendant's taxed costs payable by the Plaintiff.