CHAU YAU v. CHAN CALVIN AND ANOTHER

CHAU YAU v. CHAN CALVIN AND ANOTHER

Because the illegality point was first raised by the 1st defendant after the Master's hearing, the case falls within the White Book principle leaving costs below undisturbed; the parties' Consent Summons granting unconditional leave to defend negated the abuse of process argument, accordingly the Master's cost order stands and the costs of the appeal are to be costs in the cause, with a separate order that the 1st defendant pay the costs of this hearing to the plaintiff.

Citation
CHAU YAU v. CHAN CALVIN AND ANOTHER
Parties
Plaintiff: Chau Yau; 1st Defendant: Chan Calvin; 2nd Defendant: Chan Cho Wing Joe alias Chan Cho Wing
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 November 2009
Case Number
HCA666/2007
Procedural Posture
Civil (order 14 Summary Judgment; Contract/property Dispute Under Small House Policy) / Costs Hearing on Appeal From Master's Interlocutory Judgment
Outcome
Master's costs order upheld; costs of appeal to be costs in the cause; limited additional costs orders against 1st defendant as set out.
Legal Topics
Summary Judgment (order 14), Illegality, Costs, Abuse of Process, Interlocutory Judgment
Source Language
EN
Civil Procedure Contract Law Property Law Summary Judgment (order 14) Illegality Costs Abuse of Process Interlocutory Judgment

Case Brief

Summary, issues, holding and outcome

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Parties

Chau Yau

Plaintiff

Chan Calvin

1st Defendant

Chan Cho Wing Joe alias Chan Cho Wing

2nd Defendant

Procedural Posture

Civil (order 14 Summary Judgment; Contract/property Dispute Under Small House Policy) / Costs Hearing on Appeal From Master's Interlocutory Judgment

Legal Issues

  1. 1 Whether costs below should be disturbed where a point of illegality was first raised after the hearing before the Master
  2. 2 Whether the plaintiff's legal advisers had a duty to alert the Master to the alleged illegality notwithstanding the defendants' failure to raise it
  3. 3 Whether the defendants' late reliance on illegality amounted to an abuse of process justifying different costs orders

Ratio Decidendi

Because the illegality point was first raised by the 1st defendant after the Master's hearing, the case falls within the White Book principle leaving costs below undisturbed; the parties' Consent Summons granting unconditional leave to defend negated the abuse of process argument, accordingly the Master's cost order stands and the costs of the appeal are to be costs in the cause, with a separate order that the 1st defendant pay the costs of this hearing to the plaintiff.

Court Disposition

Master's costs order upheld; costs of appeal to be costs in the cause; limited additional costs orders against 1st defendant as set out.

Orders

  • The cost order made by the Master below shall stand.
  • The costs of the appeal from the Master shall be costs in the cause.