YAU KWAI AND OTHERS v. YAU KAR SIU AND OTHERS

HCA7129/1997 and HCMP1363/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7129 OF 1997

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(Consolidated by Order of
The Honourable Mr Justice Reyes dated 17 October 2003)

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D E C I S I O N

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1. The judgment in these proceedings was handed down on 23 July 2004.  On 18 November 2004, the parties appeared before me.

2. On 18 November 2004, the 3^rd defendant indicated its wish to adduce further evidence relating to partition.  In particular, the 3^rd defendant wished to claim that the area to be allotted to the 3^rd defendant, namely, the shaded green area and the pink area should be augmented by what the 3^rd defendant called “the intended blue area”.  I left the matter on the basis that if the 3^rd defendant wished to proceed with such application, it had to notify the plaintiffs within 14 days.  And that I would await that event before deciding on costs.  Since if the application were made, I might defer my decision until after that application has been disposed of.

3. On 29 November 2004, the 3^rd defendant informed the plaintiffs that it would not pursue that application.

4. On 18 November 2004, I also gave directions regarding the finding of evidence in respect of the assessment of equalization money.

5. The other matter which was argued on 18 November 2004 related to the costs of the proceedings so far.  I will deal with such costs below.

6. As is apparent from the judgment, the parties had been partly successful.  The plaintiffs succeeded on partition which was the subject of HCMP1363/2003.  But the plaintiffs failed in their claim for trespass as well as their claim against the title of the 3^rd defendant which depended on Chinese customary law.  These other claims were the subject of HCA7129/1997.  On the other hand, I held that the plaintiffs were right to have obtained the ex parte injunction referred to in para.62 of my judgment.

7. Mr Barlow, for the 1^st and 2^nd plaintiffs, argued since HCA7129/1997 and HCMP1363/2003 have been consolidated, I should follow the Court of Appeal’s decision in In re Elgindata (No.2) [1992] 1 WLR 1209 and award the plaintiff’s all the costs.

8. According to In re Elgindata (No.2), the general rule is that a successful plaintiff is entitled to his costs notwithstanding that he might have failed on some issues.  The reason for that is obvious because one should take a global view of the matter, and costs should follow the event even if a party succeeded on one or more issues if these issues did not affect the substantial outcome of the litigation.  This is so whether the issues go to the same cause of action or different but related causes of action as, for example, where a plaintiff relies on both contract and tort in a claim against a solicitor.

9. But I do not think that the principle has any application here.  Although the two proceedings have been consolidated, they concerned discreet claims.  The claim for trespass is irrelevant to the claim for partition.  The claim regarding the invalidity of the lease granted to the 3^rd defendant or the sale by the 1^st and 2^nd defendants of their respective interests to the 3^rd defendant have little direct relevance to the plaintiffs’ claim for partition.

10. So, I would hold that the plaintiffs are entitled to the costs in relation to the ex parte injunction.  As for the rest of the costs attributable to HCA7129/1997, the defendants should have such costs. 

11. As for the partition action, the 3^rd defendant opposed the partition.  However, the 1^st and 2^nd defendants were unnecessary parties.  They had assigned their interests to the 3^rd defendant.  Insofar as the costs have been increased by their joinder, the plaintiffs should pay them.  Otherwise, the 3^rd defendant should be responsible for the costs in the partition action incurred so far.

12. However, the parties wanted me to take a global view of the matter rather than to leave the matter to be sorted out by the taxing master.  I have not found this an easy task.  But mindful of the fact that if I were not to do so, it would result in additional costs to the parties.  There is no indication that the parties would be prepared to agree on anything. 

13. Doing the best I can, having regard to the time taken on the different issues and bearing in mind that the defendants’ expert had to come from the United Kingdom, the order I would make is that the defendants should have 20% of the costs of these proceedings incurred up to date, and that would include the costs of the hearing before me on 18 November 2004.  In other words, the plaintiffs are to pay to the defendants 20% of the costs of the proceedings up to date (both before and after consolidation).  It also follows that the defendants would not be liable to pay to the plaintiffs the costs of the injunction application.