KAMSHAN HOLDINGS LTD. v. CHAN TUNG MAN

CACV 141/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 141 OF 1999

(ON APPEAL FROM HCA 7959/1997)

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J U D G M E N T

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Godfrey, J.A. :

1. This is an application made by the respondent ("the landlord") to this appeal in which we gave judgment on 8 October 1999. The application concerns the order nisi we made as to the costs of the appeal. We proposed that judgment be entered for the landlord for $2,500, and we proposed that the costs of the appellant ("the tenant") below and of this appeal, on which the tenant had largely succeeded, and of the cross-appeal, should be taxed, if not agreed, and paid by the landlord to the tenant.

2. The landlord now submits that the right order to make would be an order making no order as to the costs of the appeal. Counsel on the landlord's behalf has referred us to the course the proceedings took below; he points out that the landlord did have some success in this court; and that he will recover $2,500 under our order.

3. As was remarked in the course of argument, a claim for $2,500, had it been advanced by the landlord as his only claim, could and should have been dealt with in the Small Claims Tribunal, in which lawyers do not appear and in which no order for costs would have made other than in relation to the costs of instituting the proceedings at that Tribunal.

4. In my view, the justice of the case does require a minor variation in our proposed order as to costs. The landlord, whose initial claims were all rejected by the tenant, including the landlord's claim for $2,500 upon which we have given judgment in the landlord's favour, has achieved that minor success, and ought to have an order for costs which reflects what he would have had to expend in order to recover the $2,500 in the Small Claims Tribunal. That cannot be a sum greater, I think, than some $500.

5. I would therefore now propose that we make absolute our order nisi (for, as I said in my own judgment on the appeal, the tenant has largely succeeded) save as to the small sum I have mentioned. I would order, in making that order absolute, that $500 should be deducted from the sum payable by the landlord to the tenant in respect of the tenant's costs.

6. There is nothing further that I wish to add.

Rogers, J.A. :

7. I agree and I have nothing to add.

Keith, J.A. :

8. I agree. The order proposed has the effect of putting the parties into the position in which they would have been if the Plaintiff had successfully sued the Defendant for the sum of $2,500.00 in the Small Claims Tribunal. The Defendant would have incurred no legal costs in those circumstances because legal representation is not permitted in the Tribunal, but he would have been required to pay the Plaintiff the small sum which an applicant has to pay to lodge a claim with the Tribunal.