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Cheung Kee Fung Cheung Construction Co., Ltd. v Permanent Investment Co., Ltd.

Judgment Cited in Precedent Map Related
Vincent
Judgment Date12 March 2020
Neutral Citation[2020] HKCFI 385
Judgement NumberHCCT26/2019
Subject MatterConstruction and Arbitration Proceedings
CourtCourt of First Instance (Hong Kong)
HCCT26A/2019 CHEUNG KEE FUNG CHEUNG CONSTRUCTION CO., LTD. v. PERMANENT INVESTMENT CO., LTD.

HCCT 26/2019

[2020] HKCFI 385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS
NO 26 OF 2019

________________________

IN THE MATTER of section 84 of the Arbitration Ordinance, Cap 609 and Order 73, rule 10 of the Rules of the High Court, Cap 4A
and
IN THE MATTER of an Interim Award dated 6 March 2019 (as corrected on 10 April 2019) by Paul Barrett

________________________

BETWEEN

CHEUNG KEE FUNG CHEUNG CONSTRUCTION CO., LTD. Applicant / Claimant
in the Arbitration
and
PERMANENT INVESTMENT CO., LTD. Respondent / Respondent
in the Arbitration

________________________

Before: Deputy High Court Judge Hall-Jones in Chambers
Date of Respondent’s Written Submissions: 4 December 2019
Date of Applicant’s Written Submissions in Reply: 18 December 2019
Date of Respondent’s Written Submissions in Reply: 20 January 2020
Date of Decision on costs: 12 March 2020

________________________

DECISION ON COSTS

________________________

1. There are two sets of proceedings that have been before the court between the applicant and the respondent. The first was the respondent’s application to set aside an enforcement order dated 10 May 2019 made by Madam Justice Mimmie Chan (“the Enforcement Order”). These were the proceedings in HCCT 26/2019. Additionally, the respondent sought leave to appeal against the underlying award of an arbitrator, Mr Paul Barrett, dated 6 March 2019, as corrected on 10 April 2019 (“the Award”). These were the proceedings in HCCT 27/2019. The status of these two sets of proceedings is summarized below.

Setting aside proceedings

2. In its decision dated 25 October 2019 (“the Decision”), the court dismissed the respondent’s setting aside application. In the Decision, the court varied the terms of the Enforcement Order; and since the respondent had failed in its application to set aside the Enforcement Order, the court made an order nisi that the respondent shall pay the costs of the setting aside application.

3. By its summons dated 8 November 2019, the respondent seeks to vary the court’s order nisi such that the applicant shall pay the respondent the costs of the setting aside application. There was no application at that time by the applicant to vary the order nisi.

4. After submissions from the parties, the court set out a timeline for written costs submissions which resulted in one round of submissions from the respondent and applicant dated 4 and 18 December 2019, respectively. With leave, further submissions were filed by the respondent on 20 January 2020.

Application for leave to appeal

5. Subsequent to the Decision, the respondent’s application for leave to appeal in proceedings HCCT 27/2019 was dismissed, with an order nisi that the costs of the application were to be paid by the plaintiff in those proceedings to the defendant, with certificate for counsel.

6. In effect, the respondent has failed in both of the proceedings described above.

Respondent’s submissions

7. While the respondent accepts the general principle that costs in this case should follow the event, it argues that there are special matters that need to be taken into account that suggest that a different order should be made. The respondent relies inter alia, upon Order 1A, Order 62 rule 3(2) and Order 62 rules 5(1) and (2) and some related authorities.

8. In particular, the matters from the respondent’s written submissions that appear relevant are as follows:

a) The applicant was not altogether successful in its defence of the Enforcement Order, in that paragraph 1(iii) of the Enforcement Order was deleted in the Decision.

b) The respondent’s compromise proposals (as set out in paragraph 10 of the Decision) should have been accepted and that this ought to be taken into account in relation to costs.

Applicant’s submissions

9. As to the first of these points, the applicant says that the deletion of paragraph 1(iii) of the Enforcement Order took up minimal or no time at the hearing and that this is not a point that should lead the court to depart from the usual costs order.

10. As to the second point, the applicant’s position is simple. It says that the applicant had made a setting aside application. This application failed, such that the court’s order nisi is correct and should stand. The applicant refutes that the respondent’s compromise proposals change this position. This is because the compromise proposals were not directed towards an...

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