CHINNEY CONSTRUCTION CO LTD v. PO KWONG MARBLE FACTORY LTD

CHINNEY CONSTRUCTION CO LTD v. PO KWONG MARBLE FACTORY LTD

Chinney's unilateral mistake justified making it liable for costs up to and including those reasonably incurred in seeking remittal (modelled on a hypothetical formal hearing) but not for additional costs caused by Po Kwong's vigorous and contested opposition; accordingly the court varied the costs order nisi so that Chinney pays Po Kwong the costs of the proceedings and up to 25% of the hearing costs, while Po Kwong pays the remaining 75% of the hearing costs to Chinney; costs to be taxed if not agreed; certificate for two counsel refused.

Citation
CHINNEY CONSTRUCTION CO LTD v. PO KWONG MARBLE FACTORY LTD
Parties
Applicant (respondent in Arbitration): Chinney Construction Company Limited; Respondent (claimant in Arbitration): Po Kwong Marble Factory Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 October 2005
Case Number
HCCT7/2005
Procedural Posture
Construction and Arbitration Proceedings; Appeal Against Arbitral Award / Judgment on Costs Following Hearing and Variation of Costs Order Nisi
Outcome
Costs order nisi varied: Chinney to pay Po Kwong the costs of the proceedings and up to 25% of the costs of the hearing (including further written submissions); Po Kwong to pay Chinney the remaining 75% of the costs of the hearing; costs to be taxed if not agreed; application for certificate for two counsel refused.
Legal Topics
Costs Orders, Taxation of Costs, Remittal to Arbitrator, Calderbank Letters, Leave to Appeal, Certificate for Two Counsel
Source Language
EN
Arbitration Civil Procedure Costs Appeal Construction Law Costs Orders Taxation of Costs Remittal to Arbitrator +3 more

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Parties

Chinney Construction Company Limited

Applicant (respondent in Arbitration)

Po Kwong Marble Factory Limited

Respondent (claimant in Arbitration)

Procedural Posture

Construction and Arbitration Proceedings; Appeal Against Arbitral Award / Judgment on Costs Following Hearing and Variation of Costs Order Nisi

Legal Issues

  1. 1 Whether exceptional circumstances justify depriving the successful party of costs or ordering it to pay the opponent's costs
  2. 2 Whether Chinney's unilateral pre-arbitral mistake justified an adverse costs order beyond limited scope
  3. 3 Proper allocation of costs arising from the hearing where respondent vigorously opposed the application

Ratio Decidendi

Chinney's unilateral mistake justified making it liable for costs up to and including those reasonably incurred in seeking remittal (modelled on a hypothetical formal hearing) but not for additional costs caused by Po Kwong's vigorous and contested opposition; accordingly the court varied the costs order nisi so that Chinney pays Po Kwong the costs of the proceedings and up to 25% of the hearing costs, while Po Kwong pays the remaining 75% of the hearing costs to Chinney; costs to be taxed if not agreed; certificate for two counsel refused.

Court Disposition

Costs order nisi varied: Chinney to pay Po Kwong the costs of the proceedings and up to 25% of the costs of the hearing (including further written submissions); Po Kwong to pay Chinney the remaining 75% of the costs of the hearing; costs to be taxed if not agreed; application for certificate for two counsel refused.

Orders

  • Costs order nisi varied so that Chinney pays Po Kwong the costs of the proceedings and up to 25% of the costs of the hearing; Po Kwong to pay Chinney 75% of the costs of the hearing
  • All costs to be taxed if not agreed