SINO FAVOUR DEVELOPMENT LTD AND ANOTHER v. KAN FOR PING STEVEN AND OTHERS

SINO FAVOUR DEVELOPMENT LTD AND ANOTHER v. KAN FOR PING STEVEN AND OTHERS

The judge exercised discretion to vary the costs order as to the plaintiffs because the 1st defendants were partially successful on appeal but the substantial part of costs was incurred on the merits; accordingly 80% of the plaintiffs' appeal costs are payable by the 1st defendants on a party and party basis, and the non-party's costs are to be paid by the 1st defendants on a common fund basis because time spent on those issues was minimal and the non-party accepted common fund taxation.

Citation
SINO FAVOUR DEVELOPMENT LTD AND ANOTHER v. KAN FOR PING STEVEN AND OTHERS
Parties
1st Plaintiff: SINO FAVOUR DEVELOPMENT LIMITED; 2nd Plaintiff: SHINY DEVELOP LIMITED; 1st Defendant (action No. Hca1517/2005): KAN WAI CHUNG; 1st Defendant (action No. Hca1518/2005): KAN KAR FAI; 1st Defendant (action No. Hca1519/2005): KAN WAI MING; 1st Defendant (action No. Hca1520/2005): LAU FOOK KEUNG; 1st Defendant (action No. Hca1521/2005): KAN FOR PING STEVEN; 2nd Defendant: BARBICAN CAPITAL INVESTMENT LIMITED; 3rd Defendant: TSANG WING KEI, WILKIE; Non Party: Non-Party
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 May 2010
Case Number
HCA1521/2005
Procedural Posture
Costs Appeal and Application to Vary Costs Order Nisi / Ruling on Costs Following Dismissal of Appeal (6 May 2010)
Outcome
Costs order nisi varied in part: non-party costs awarded to non-party against 1st defendants on a common fund basis; plaintiffs awarded 80% of their appeal costs against the 1st defendants to be taxed on a party and party basis; costs of the variation treated as part of the appeal costs.
Legal Topics
Costs Order, Specific Discovery, Taxation on Common Fund Basis, Indemnity Costs, Party and Party Costs, Apportionment of Costs
Source Language
EN
Civil Procedure Costs Appeal Costs Order Specific Discovery Taxation on Common Fund Basis Indemnity Costs Party and Party Costs +1 more

Case Brief

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Parties

SINO FAVOUR DEVELOPMENT LIMITED

1st Plaintiff

SHINY DEVELOP LIMITED

2nd Plaintiff

KAN WAI CHUNG

1st Defendant (action No. Hca1517/2005)

KAN KAR FAI

1st Defendant (action No. Hca1518/2005)

KAN WAI MING

1st Defendant (action No. Hca1519/2005)

LAU FOOK KEUNG

1st Defendant (action No. Hca1520/2005)

KAN FOR PING STEVEN

1st Defendant (action No. Hca1521/2005)

BARBICAN CAPITAL INVESTMENT LIMITED

2nd Defendant

TSANG WING KEI, WILKIE

3rd Defendant

Non-Party

Non Party

Procedural Posture

Costs Appeal and Application to Vary Costs Order Nisi / Ruling on Costs Following Dismissal of Appeal (6 May 2010)

Legal Issues

  1. 1 Whether the costs order nisi should be varied to reflect partial success of the 1st defendants on appeal
  2. 2 Whether non-party costs should be on a common fund basis or indemnity basis
  3. 3 Whether the costs of the application to vary the costs order should be treated as part of the appeal costs

Ratio Decidendi

The judge exercised discretion to vary the costs order as to the plaintiffs because the 1st defendants were partially successful on appeal but the substantial part of costs was incurred on the merits; accordingly 80% of the plaintiffs' appeal costs are payable by the 1st defendants on a party and party basis, and the non-party's costs are to be paid by the 1st defendants on a common fund basis because time spent on those issues was minimal and the non-party accepted common fund taxation.

Court Disposition

Costs order nisi varied in part: non-party costs awarded to non-party against 1st defendants on a common fund basis; plaintiffs awarded 80% of their appeal costs against the 1st defendants to be taxed on a party and party basis; costs of the variation treated as part of the appeal costs.

Orders

  • The 1st defendants to pay the costs of the application below to the non-party to be taxed on a common fund basis, if not agreed.
  • The 1st defendants to pay the costs of the appeal to the non-party to be taxed on a common fund basis, if not agreed.