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CACV 58/2015

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[2018] HKCA 372

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IN THE HIGH COURT OF THE E


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HONG KONG SPECIAL ADMINISTRATIVE REGION
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F COURT OF APPEAL
CIVIL APPEAL NO. 58 OF 2015 G
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(ON APPEAL FROM HCAL NO. 58 OF 2011)
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I BETWEEN

J THE REAL ESTATE DEVELOPERS Applicant J


ASSOCIATION OF HONG KONG
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and
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TOWN PLANNING BOARD Respondent
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Before : Hon Cheung and Kwan JJA in Court


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Dates of Applicant’s Written Submissions : 7 May 2018 and


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21 June 2018
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Date of Respondent’s Written Submissions : 5 June 2018

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Date of Decision on Costs : 28 June 2018

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DECISION ON COSTS
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Hon Cheung JA (giving the Decision on Costs of the Court) :


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1. On 3 February 2015 Au J allowed the application for F


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judicial review brought by The Real Estate Developers
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G Association of Hong Kong (‘REDA’). He quashed the
decisions made by the Town Planning Board (‘TPB’) (‘the H
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Decisions’) and remitted the Decisions back to TPB for
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reconsideration.

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2. Au J further awarded REDA 80% of its costs in the
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3. TPB filed a Notice of Appeal on 10 March 2015

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against the judgment. TPB asked for the judgment to be set M

aside and the costs order reversed.


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4. On 24 March 2015, REDA filed a Respondent’s O


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Notice asking that,
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1) the judgment be varied such that, in addition to the
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Q remedies granted in the judgment, declarations be granted as set
out at paragraphs 3, 4 and 5 of REDA’s Form 86; and R
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2) further/alternatively, the judgment be affirmed on S


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the additional/alternative grounds set out in the R espondent’s
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Notice.

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5. As recorded in a Consent Order dated 12 April 2018
C and sealed on 19 April 2018 made pursuant to a joint application C

by the parties dated 11 April 2018 , TPB’s appeal was dismissed


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and REDA’s cross-appeal as set out in its Respondent’s Notice
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E was withdrawn. The parties further asked the Court to address
the issue of costs. F
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G 6. REDA now asks for G

H 1) TPB to pay REDA’s costs of the appeal, including H

the costs of the Respondent’s Notice; or alternatively,


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2) TPB to pay REDA’s costs of the appeal with no order


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as to the costs of the Respondent’s Notice.
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7. REDA also asks for the costs of the joint a pplication


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of 11 April 2018, the Consent Order of 12 April 2018 and the

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present application. M

N 8. This is opposed by TPB which asks the Court to N

order the parties to bear its own costs (save and except that
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REDA should bear the costs of the present application).
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9. REDA’s basis for seeking costs against TPB is that


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as a result of the determination of Oriental Generation Ltd v
R TPB (‘Oriental Generation CACV 127 & 129/2012) [CA] and R

Hysan Development Ltd v TPB (‘Hysan CACV 232 &


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233/2012) [CA] and (2016) 19 HKCFAR 372 [CFA] , TPB’s
T appeal is bound to fail while many of the grounds raised by T

REDA in its Respondent’s Notice have a good prospect of


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success and indeed it is bound to succeed on a specific issue
C relating to Basic Law/proportionality. C

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10. When a party requests to have its appeal

E dismissed, generally it is obliged to pay the other side’s E

costs. As Mr Abraham Chan SC for TPB submitted this is


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correct for obvious reasons: when an appellant withdraws an
G appeal, this is usually because of a recognised lack of merit in G

its case. We are of the view that a similar general approach


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must apply to the withdrawal of a party’s case under a
I Respondent’s Notice. REDA is asking this Court to depart I

from this general approach in respect of its withdrawal of the


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cross-appeal.
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11. Where a case is settled except as to costs the


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overriding objective of the Court in the exercise of its power to

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make a costs order is to do justice between the parties without M

incurring unnecessary court time and consequently additi onal


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costs. One factor is whether (and to what extent) it can

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issues been fought to a conclusion. How far the Court will be


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prepared to look into the previously unresolved substantive
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case, not least the amount of costs at stake and the conduct of
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the parties. In the absence of any good reason to make any
S other order the fall back is to make no order as to costs : see the S

English Court of Appeal’s decision in Brawley v Marczynski


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(No 1) [2003] 1 WLR 813 (at paragraph 21) endorsed by this
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Court (Lam VP and Barma JA) in Golden Tonn Industrial
C Limited v Hong Kong Cyberport (Ancillary Development C

Limited) [2015] 3 HKC 226.


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E 12. The merits of TPB’s appeal and REDA’s E

cross-appeal clearly require proper analysis which we are not


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prepared to undertake in the absence of full arguments which
G clearly will necessarily incur further costs and time. This is G

not a case where the issue is so patently clear that the Court can
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with confidence make a ruling on which party is likely to
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13. This being the case the appropriate order is that each
party will bear its own costs in respect of the appeal and K
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cross-appeal (including all consequential applications) and the
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present application for costs. The Court will take a broad

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brush approach regarding the costs of the present application M

and order that each party to bear its own costs is to apply
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throughout, notwithstanding that TPB is successful in its costs

O submission. O

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R (Peter Cheung) (Susan Kwan) R


Justice of Appeal Justice of Appeal
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Mayer Brown JSM, for the applicant


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Mr Abraham Chan SC, instructed by Department of Justice, for


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the respondent

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