FELAN INVESTMENT LTD v. SARWIN INDUSTRIES LTD AND ANOTHER

FELAN INVESTMENT LTD v. SARWIN INDUSTRIES LTD AND ANOTHER

The Tribunal found A had substantially obtained the relief sought because the outdoor stack-up units were removed/relocated so as not to obstruct the display window; R1's uncooperative and evasive conduct about ownership justified departure from the usual rule on discontinuance; accordingly R1 must bear the majority of A's costs (90%) and must directly pay R2's costs of defending A's claim; R1 must also pay the bulk of the costs of the costs argument (80%) with R2 paying 20%; costs on District Court scale and to be taxed if not agreed.

Citation
[2018] HKLdT 17
Parties
Applicant: A; 1st Respondent: R1; 2nd Respondent: R2
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
16 March 2018
Case Number
LDBM7/2015
Procedural Posture
Land Tribunal Application (claim and Counterclaim) / Hearing on Costs Following Consent Discontinuance
Outcome
Consent discontinuance confirmed; costs awarded against R1 as detailed below and indemnity direction to R1 in respect of R2's costs
Legal Topics
Discontinuance, Costs Orders, Sanderson Order, Bullock Order, Nuisance, Restrictive Covenants (deed of Mutual Covenant), Unauthorized Building Works, Occupation Permit
Source Language
EN
Property Law Civil Procedure Land Law Costs Law Building Control Discontinuance Costs Orders Sanderson Order +5 more

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Parties

A

Applicant

R1

1st Respondent

R2

2nd Respondent

Procedural Posture

Land Tribunal Application (claim and Counterclaim) / Hearing on Costs Following Consent Discontinuance

Legal Issues

  1. 1 Which party substantially succeeded for costs purposes after discontinuance
  2. 2 Whether a Sanderson or Bullock order should be made to shift R2's costs to R1
  3. 3 Whether A succeeded on its claim alleging breach of clause 10(c) of the DMC by R1/R2

Ratio Decidendi

The Tribunal found A had substantially obtained the relief sought because the outdoor stack-up units were removed/relocated so as not to obstruct the display window; R1's uncooperative and evasive conduct about ownership justified departure from the usual rule on discontinuance; accordingly R1 must bear the majority of A's costs (90%) and must directly pay R2's costs of defending A's claim; R1 must also pay the bulk of the costs of the costs argument (80%) with R2 paying 20%; costs on District Court scale and to be taxed if not agreed.

Court Disposition

Consent discontinuance confirmed; costs awarded against R1 as detailed below and indemnity direction to R1 in respect of R2's costs

Orders

  • R1 do pay 90% of A's costs of its claim against the respondents and of A defending R1's counterclaim; such costs to be on the District Court scale, to be taxed if not agreed.
  • R1 do pay direct R2's costs of defending A's claim; such costs to be on the District Court scale, to be taxed if not agreed.