CHAN YAU v. CHAN CALVIN AND ANOTHER

HCA 666/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 666 OF 2007

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DECISION ON COSTS

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1. I handed down judgment in this matter on 5 September 2014. Since then I have received the parties’ written submissions on costs as directed in paragraph 121 of my judgment. This is my decision on the costs of the action and counterclaim.

2. The starting point is O. 62 r. 3(2) which provides:

“If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings (other than interlocutory proceedings), the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.”

3. O. 62 r. 5 however sets out a number of matters that the Court shall, to such extent as may be appropriate in the circumstances, take into account.  In particular, under r. 5(1)(e) and (f), the relevant factors include the conduct of the parties and whether a party has succeeded on part of his case, even if he has not been wholly successful.  By r. 5(2)(d), conduct of a party includes his conduct before, as well as during, the proceedings.

4. In the present case, I consider it appropriate to take into account the fact that, on the basis of my findings, both defendants had, prior to these proceedings, collaborated with the plaintiff in a development scheme in a manner that involved illegality as described in my judgment.  The defendants’ participation in the scheme was crucial since the 1^st defendant was the original beneficial owner of the land and the 2^nd defendant was the indigenous villager who agreed to let his name be used in the application to the Government.

5. Further, the 1st defendant advanced a case on the facts which I in the end rejected, finding his relevant evidence to be wholly unreliable.  Although the 2nd defendant did not give evidence, he had aligned himself with that factual case which was the major issue of fact and took up a very considerable proportion (on my broad estimate, more than half) of the time spent in the trial.

6. Conversely, in relation to the 2nd defendant’s counterclaim, while it was largely unsuccessful, I also take into account the plaintiff’s involvement in the same scheme tainted by illegality.  In any event, the counterclaim did not raise many additional issues in the proceedings and minimal time was spent on it at trial.

7. Having regard to all the circumstances and in particular the above matters, I consider it proper that the parties should bear their own costs.  There will therefore be no order as to the costs of the action and of the counterclaim, including the written submissions on costs.