TOP BAGAGE INTERNATIONAL v. WISTAR ENTERPRISES LTD

HCCT 42/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO. 42 OF 2008

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	IN THE MATTER of an Arbitration between Top Bagage International and Wistar Enterprises Limited
	and
	IN THE MATTER of sections 2GG and 42(1) of the Arbitration Ordinance (Cap. 341)
	and
	IN THE MATTER of an Arbitration Award dated 16 July 2008
	and
	IN THE MATTER of Order 73 rule 10 of the Rules of the High Court.

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BETWEEN

	TOP BAGAGE INTERNATIONAL	Applicant
and
	WISTAR ENTERPRISES LIMITED	Respondent

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Before: Hon Saunders J in Chambers

Date of Hearing: 10 March 2011

Date of Decision: 10 March 2011

Date of Reasons for Decision: 17 March 2011

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REASONS FOR DECISION

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1.  On 7 January 2011, I handed down a decision, which included a decision on costs, in this matter. Mr Hew now draws my attention to a factual error in that decision. In paragraphs 14-16 I dealt with an issue as to the proof of French law, and held that an opinion as to French law, which I said was exhibited to an affidavit by Mr Tavernier, was inadmissible and accordingly no costs should be allowed on that affidavit.

2.  Mr Hew, correctly, points out that the opinion was not in fact exhibited that affidavit, but was merely separately filed with a backsheet.  For the reasons I gave in the decision, that format was equally inadmissible.  There is no doubt that, the orders made in the decision of 7 January 2011, not having been sealed, jurisdiction exists to correct any errors made in that decision. Without correction, the decision does not properly reflect the correct position.

3.  The decision as to costs will be varied in the following terms:  Wistar is entitled to its costs of incidental to the summons of 31 October 2008, but no costs shall be allowed in respect of the French legal opinion filed by Wistar.

4.  Mr Hew next sought to argue that there should be consequential adjustments in the costs order to reflect the fact that subsequent steps, including the filing of other affidavits flowed from the French legal opinion. Costs should not be allowed, he said, on those subsequent steps.  That is a matter which, in my view, is best left to the taxing master who will use his discretion in allowing or refusing costs.  In the application of that discretion he must necessarily have regard to the fact that I have refused costs in respect of the French legal opinion.

5.  Wistar, by its director Mr Tavernier, sought leave to appeal against my decision in respect of costs.  Following my explanation to him of the circumstances Mr Tavernier elected not to proceed with the application for leave to appeal which was dismissed.

6.  I made no order as to costs on the application for leave to appeal or the application to vary the decision.  More than enough has been spent on legal fees in this matter already.

 

 

(John Saunders) Judge of the Court of First Instance High Court

 

Mr Hew Yang-Wahn, instructed by Messrs Boughton Peterson Yang Anderson, for the Applicant

The Respondent, in person, by its director Mr Eric Marie Thibaut Tavernier