BIG ISLAND CONSTRUCTION (HK) LTD v. WU YI ENTERPRISES CO LTD

BIG ISLAND CONSTRUCTION (HK) LTD v. WU YI ENTERPRISES CO LTD

Because both sides engaged in serious misconduct and fabrication in HCA1957/2005 the court varied the costs order nisi to make no order as to costs between the parties; indemnity costs were awarded against BIC in HCA714/2007 because BIC invented an untenable defence amounting to an affront to the court; indemnity costs were refused in HCA886/2007 as no exceptional features justified them; the application to make Mr Lee personally liable failed for procedural (failure to join and hear him) and substantive reasons (lack of investigation into control/funding); set off against FBC's costs was refused for lack of close connection; WYC was ordered to pay Mr Lee the costs of HCA1364/2008 on a...

Citation
BIG ISLAND CONSTRUCTION (HK) LTD v. WU YI ENTERPRISES CO LTD
Parties
Plaintiff (hca1957/2005; Hca886/2007); Defendant (hca714/2007; Hca1364/2008): Big Island Construction (HK) Limited; 1st Defendant (hca1957/2005); Plaintiff (hca714/2007): Wu Yi Development Company Limited; 2nd Defendant (hca1957/2005): Wu Yi Construction Company Limited; Defendant (hca886/2007): Wu Yi Enterprises Company Limited; Plaintiff (hca1364/2008): FBC Construction Company Limited; Interested Party / Applicant for Costs in Hca1364/2008: Mr Lee
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
25 May 2012
Case Number
HCA886/2007
Procedural Posture
Consolidated High Court Civil Actions Concerning Loans and Related Counterclaims / Decision on Variation of Costs Orders Following Judgment on Merits (costs Hearing)
Outcome
Court varied and made absolute the costs orders as set out; refused several applications for indemnity, personal liability and set off where not justified or procedurally defective
Legal Topics
Indemnity Costs, Non Party Costs Orders, Joinder for Costs Against Non Parties, Setting Off Costs Between Actions, Fabrication of Evidence, Orders Nisi, Taxation of Costs
Source Language
EN
Civil Litigation Costs and Taxation Civil Procedure Contract and Equitable Remedies Indemnity Costs Non Party Costs Orders Joinder for Costs Against Non Parties Setting Off Costs Between Actions +3 more

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Parties

Big Island Construction (HK) Limited

Plaintiff (hca1957/2005; Hca886/2007); Defendant (hca714/2007; Hca1364/2008)

Wu Yi Development Company Limited

1st Defendant (hca1957/2005); Plaintiff (hca714/2007)

Wu Yi Construction Company Limited

2nd Defendant (hca1957/2005)

Wu Yi Enterprises Company Limited

Defendant (hca886/2007)

FBC Construction Company Limited

Plaintiff (hca1364/2008)

Mr Lee

Interested Party / Applicant for Costs in Hca1364/2008

Procedural Posture

Consolidated High Court Civil Actions Concerning Loans and Related Counterclaims / Decision on Variation of Costs Orders Following Judgment on Merits (costs Hearing)

Legal Issues

  1. 1 Whether costs orders nisi should be varied
  2. 2 Whether indemnity costs should be awarded against BIC in HCA1957/2005, HCA714/2007 and HCA886/2007
  3. 3 Whether Mr Lee, a non-party, should be personally liable for costs of actions he was not a party to

Ratio Decidendi

Because both sides engaged in serious misconduct and fabrication in HCA1957/2005 the court varied the costs order nisi to make no order as to costs between the parties; indemnity costs were awarded against BIC in HCA714/2007 because BIC invented an untenable defence amounting to an affront to the court; indemnity costs were refused in HCA886/2007 as no exceptional features justified them; the application to make Mr Lee personally liable failed for procedural (failure to join and hear him) and substantive reasons (lack of investigation into control/funding); set off against FBC's costs was refused for lack of close connection; WYC was ordered to pay Mr Lee the costs of HCA1364/2008 on a...

Court Disposition

Court varied and made absolute the costs orders as set out; refused several applications for indemnity, personal liability and set off where not justified or procedurally defective

Orders

  • The costs order nisi in HCA1957/2005 is varied: there shall be no order as to costs between the parties in that action and the order is made absolute
  • The costs order nisi in HCA714/2007 is varied: the costs payable by BIC shall be taxed on an indemnity basis if not agreed and the order is made absolute as varied