SUN HONEST DEVELOPMENT LTD v. APPEAL TRIBUNAL (BUILDINGS)

FACV No. 2 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2009 (CIVIL)

(ON APPEAL FROM CACV NO. 299 OF 2007)

_____________________

Between :

CHINA FIELD LIMITED Applicant
(Appellant)
– and –
APPEAL TRIBUNAL (BUILDINGS)

Respondent
(Respondent)
– and –
BUILDING AUTHORITY Interested Party

_____________________

FACV No. 3 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2009 (CIVIL)

(ON APPEAL FROM CACV NO. 300 OF 2007)

_____________________

Between :

SUN HONEST DEVELOPMENT LIMITED Applicant
(Appellant)
– and –
APPEAL TRIBUNAL (BUILDINGS) Respondent
(Respondent)
– and –
BUILDING AUTHORITY Interested Party

_____________________

Court : Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Mortimer NPJ and Lord Millett NPJ

Date of Judgment : 5 January 2010

__________________________

JUDGMENT ON COSTS

___________________________

Mr Justice Ribeiro PJ :

1. On 30 October 2009, the Court handed down its judgment in this appeal. China Field’s appeal, which turned on the constructionof section 16(1)(h) of the Buildings Ordinance, was allowed. Sun Honest’s appeal was dismissed on the basis that the Building Authority’s refusal to approve its building plans,applying the doctrine of lost modern grant, was sound. Written submissions on costs were called for and have now been received fromthe two appellant companies and from the Building Authority. This is the Court’s judgment as to costs.

2. While the Building Authority accepts that it should pay costs to China Field, it submits that a deduction of one-third should bemade to reflect China Field’s failure to convince the Court on two arguments advanced. In our view, China Field should get itscosts against the Building Authority without deduction. China Field’s reliance on those arguments does not justify departing fromthe usual rule that costs should follow the event in the present case.

3. China Field seeks a certificate for three counsel in respect of the hearing before the Court of Appeal. We consider that a certificatefor only two, and not three, counsel is justified. China Field’s argument that three counsel should be certified because the BuildingAuthority was represented by three counsel before the Court of Final Appeal is rejected. China Field was only concerned with theconstruction of section 16(1)(h), an argument of no great complexity. The Building Authority, on the other hand, had to deal both with that question of constructionand with a complex argument concerning the doctrine of lost modern grant arising on Sun Honest’s appeal.

4. Having lost its appeal, Sun Honest should pay the costs of the Building Authority in the Court of Final Appeal. There is equallyhere no justification for departing from the usual rule that costs should follow the event. Sun Honest submits that the costs ofthe leave applications should be separately dealt with on the basis that it had not resisted leave to appeal on the ground on whichit eventually lost, but had properly resisted leave on the ground on which the Building Authority has been unsuccessful. The Court’spractice has generally been to treat the costs of leave applications (before the Court of Appeal and the Appeal Committee) as partand parcel of the costs of the appeal. There is no reason to depart from that rule in this case. Given the complexity of the argumentin relation to the lost modern grant doctrine, we consider a certificate for three counsel justified in favour of the Building Authorityas against Sun Honest. The costs orders made against Sun Honest in the Court of First Instance and in the Court of Appeal shouldremain undisturbed.

5. Accordingly, we make the following orders, namely:

(a) That the Building Authority pay China Field’s costs in this Court (including the costs of its written submissions as to costs)and in the courts below, with a certificate for two counsel in the Court of Appeal, to be taxed if not agreed.

(b) That Sun Honest pay the costs of the Building Authority in this Court (including the costs of its written submissions as to costs),with a certificate for three counsel, to be taxed if not agreed, and with the orders as to costs made by the courts below in respectof Sun Honest left undisturbed.

(Kemal Bokhary)
Permanent Judge

(Patrick Chan)
Permanent Judge

(R A V Ribeiro)
Permanent Judge

(Barry Mortimer)
Non-Permanent Judge

(Lord Millett)
Non-Permanent Judge

Written submissions by Mr Edward Chan SC and Mr Liu Man Kin (instructed by Messrs William Sin & So) for the appellant in FACVNo. 2 of 2009

Written submissions by Mr Liu Man Kin (instructed by Messrs William Sin & So) for the appellant in FACV No. 3 of 2009

Written submissions by Mr Joseph Fok SC, Mr Mok Yeuk Chi and Mr Alexander Stock (instructed by the Department of Justice) for theInterested Party in both appeals