CHOI CHUNG BUN VINCENT v. AUSTRALIA CHINA HOLDINGS LTD

CHOI CHUNG BUN VINCENT v. AUSTRALIA CHINA HOLDINGS LTD

The Court held that because the merits of the defendant's defence had been adequately disclosed before the master and the later affidavit added little, the defendant was entitled to costs of the successful appeal; however, because the defendant lost the jurisdictional challenge which consumed substantial hearing time and a short hearing before the judge would likely have been necessary, the proper exercise of discretion required apportionment — awarding the defendant 50% of the costs of the appeal before the judge and 50% of the costs of this appeal, while leaving the orders requiring the defendant to bear the costs before the master and the judge's ruling on additional materials...

Citation
CHOI CHUNG BUN VINCENT v. AUSTRALIA CHINA HOLDINGS LTD
Parties
Plaintiff (respondent): CHOI CHUNG BUN VINCENT; Defendant (appellant): AUSTRALIA CHINA HOLDINGS LIMITED (formerly SUNTECH ENVIRONMENTAL GROUP LIMITED)
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
31 October 2012
Case Number
CACV263/2011
Procedural Posture
Civil Appeal / Appeal From HCA No 539 of 2009 (costs Appeal)
Outcome
Court allows the appeal in part: defendant awarded 50% of the costs of the appeal before the judge and 50% of the costs of this Court of Appeal; defendant remains liable for the costs of the application before the master and the judge's orders regarding additional materials are undisturbed.
Legal Topics
Setting Aside Default Judgment, Costs Discretion and Apportionment, Service Out of Jurisdiction, Admission of Additional Evidence
Source Language
EN
Civil Procedure Costs Jurisdictional Rules Judgments and Default Judgments Appeal Setting Aside Default Judgment Costs Discretion and Apportionment Service Out of Jurisdiction +1 more

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Parties

CHOI CHUNG BUN VINCENT

Plaintiff (respondent)

AUSTRALIA CHINA HOLDINGS LIMITED (formerly SUNTECH ENVIRONMENTAL GROUP LIMITED)

Defendant (appellant)

Procedural Posture

Civil Appeal / Appeal From HCA No 539 of 2009 (costs Appeal)

Legal Issues

  1. 1 Whether the successful appellant should recover costs of the appeal where default judgment was set aside
  2. 2 Whether new materials filed after the master affected entitlement to costs
  3. 3 Whether the judge erred in exercising costs discretion requiring appellate intervention

Ratio Decidendi

The Court held that because the merits of the defendant's defence had been adequately disclosed before the master and the later affidavit added little, the defendant was entitled to costs of the successful appeal; however, because the defendant lost the jurisdictional challenge which consumed substantial hearing time and a short hearing before the judge would likely have been necessary, the proper exercise of discretion required apportionment — awarding the defendant 50% of the costs of the appeal before the judge and 50% of the costs of this appeal, while leaving the orders requiring the defendant to bear the costs before the master and the judge's ruling on additional materials...

Court Disposition

Court allows the appeal in part: defendant awarded 50% of the costs of the appeal before the judge and 50% of the costs of this Court of Appeal; defendant remains liable for the costs of the application before the master and the judge's orders regarding additional materials are undisturbed.

Orders

  • Defendant to have 50% of the costs of the appeal before the judge.
  • Defendant to bear the costs of the application before the master.