BEST FIELD INC v. TRIANGULAR FORCE CONSTRUCTION ENGINEERING LTD

HCA 913/2021

[2022] HKCFI 2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 913 OF 2021

______________________

______________________

_________________________________

DECISION ON COSTS

_________________________________

1.  The stay having been granted, I bear in mind a number of factors urged upon me by the parties. I will just set out these below in particular. I have borne the others in mind.

2.  One, there is something to be said about the non-response to the two letters by the plaintiff.  Of course, I note that at the time the defendant’s current solicitors were not on record and so it may be that the defendant simply had been slow, rather than necessarily tactical in inciting the plaintiff to proceed with the court proceedings.

3.  However, having commenced the court proceedings, one has some sympathy for the litigant who has, in the face of such silence, embarked upon a cause of action and is then being asked to start all over again, and one can, therefore understand the somewhat difficult position that the plaintiff was in.

4.  Although I appreciate as Mr Hui urged upon me that adopting an entirely logical and rational position, by the time of the invitation by the defendant to stay the proceedings, it perhaps, should have agreed or alternatively, at least not raise the waiver or election as the argument, but as I pointed out, there was an element in this case of the litigant ‘having ridden the tiger and finding it hard to dismount’.

5.  The second fact I bear in mind, is that the affirmations on both sides go a fair bit into the merits.  I do not mean this as a criticism but I think that being practical and pragmatic one can see how these can be effectively reused and/or recycled for the purpose of substantive proceedings in the arbitration.

6.  The third, I think there is some force in the submission of Mr Ho that this is not a classic case where a litigant clearly should not have opposed a stay. 

7.  All in all, the defendant is still the winner for the purpose of the application, notwithstanding some of the features I have highlighted above.

8.  I will, therefore, order the plaintiff to bear two-thirds of the defendant’s costs on a party and party basis and to be taxed on a gross sum.

(Discussion re taxation)

9.  So having apportioned two-thirds of the costs and applying the party and party basis, I assess those costs of this application (including those of and occasioned by this application) in the sum of HK$280,000 to be paid within 21 days.