Case Document

100%Judiciary

HCMP 836/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 836 OF 2012

______________________

	IN THE MATTER OF All that 1/1,300^th part or share of and in The Remaining Portion of Section A of New Kowloon Marine Lot No 25 (Flat B on 16^th Floor, No 120 Broadway, Mei Foo Sun Chuen, Kowloon) (“the Property”)
	and
	IN THE MATTER OF Order 113, Rule 2 of the Rules of the High Court (Cap 4A)

______________________

BETWEEN

	SZETO CHAK MEI, the sole administratrix of the unadministered properties of the late SZETO CHIU, deceased	Plaintiff
	and
	CHAN LAM SHAN(陳藍珊)	1^st Defendant
	SZETO YAN YEE(司徒欣頤)	2^nd Defendant
	SZETO KEI YAN(司徒基仁)	3^rd Defendant
	KEUNG MAN SHAN (transliterated as 姜雯珊)	4^th Defendant
	ALL OTHER PERSONS NOW IN OCCUPATION OF FLAT B, 16^TH FLOOR, NO 120 BROADWAY, MEI FOO SUN CHUEN, KOWLOON	5^th Defendant

____________________

Before: Deputy High Court Judge Cooney SC in Chambers

Date of Hearing: 7 April 2016

Date of Decision: 7 April 2016

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D E C I S I O N

__________________

1.By a judgment dated 1 March 2016, I gave judgment in this matter for the plaintiff.

2.Regarding costs, I made the following order:

“As to costs, the plaintiff has been successful and I make an order nisi that the 1^st defendant is to pay the plaintiff’s costs, to be taxed if not agreed.”

3.The plaintiff has applied by summons dated 11 March 2016 to vary my costs order to the effect that:

“The 1^st defendant shall pay the plaintiff’s costs with certificate for two counsel, to be taxed if not agreed.”

4.Whether or not the instruction of two or more counsel is justified is set out in the judgment of Master Poon, as he then was, in Xinyuan Trading Co Ltd v NPH Petrochemical Limited HCA 18159/1998 and CACV 276/1998. The principles set out in that case are set out in Hong Kong Civil Procedure 2016, Volume 1, at paragraph 62/38A.

5.I have decided to decline the application. In my view, this was not a case that involved difficult questions of law or fact. The main issue concerned proprietary estoppel. There was no novelty or, for that matter, complexity in the legal issues that had to be decided. Proprietary estoppel principles are well-settled. There was nothing highly technical about the case, contrary to the plaintiff’s contention.

6.Also, the present case is unlikely to affect any other case in the future. It was fact-sensitive. I do not agree with the plaintiff’s counsel’s submission that there were complex factual areas. The 1^st defendant’s case turned on whether certain representations were made. And although the representations were alleged to have been made years ago, the question whether or not they were made was not complex.

7.The plaintiff submits that because she was suing in the capacity as administratrix of an estate, she had to be especially careful to instruct both leading and junior counsel. But if the case was not complex, in my view, carefulness required only the briefing of suitable counsel, and did not require briefing two counsel.

8.I am told by the plaintiff’s counsel that from the outset, the plaintiff did not instruct a leader until trial. All the previous stages’ work was done solely by junior counsel. Prior to the commencement of trial, the plaintiff initially secured and instructed leading counsel only. It is said that it was upon further preparation of the case that the assistance of junior counsel was required, and was therefore instructed. The plaintiff submits it was a prudent decision to engage junior counsel to assist the leader at trial. This would improve the efficiency in preparation, it is said.

9.In my view, because this is not a complex or heavy case, such assistance was not required.

10.The plaintiff submits that the value of the property in question is relevant, and submits that the property is worth at least several, if not tens of millions of dollars. There is no evidence as to the value of the property. But even accepting the plaintiff’s submission as to its value, considering all matters together, I do not think that this is a factor which tilts the balance in the plaintiff’s favour.

11.The plaintiff’s counsel also submits that the plaintiff’s junior was less experienced than the 1^st defendant’s counsel. However, for the reasons I have already given, in my view, this was not a case that required both a leader and a junior. Accordingly, I have dismissed the summons, and I order that the plaintiff is to pay the 1^st defendant’s costs of the summons, to be taxed if not agreed and the 1^st defendant’s own costs to be taxed in accordance with the Legal Aid Regulations (Cap 91A).

(Submissions as to costs)

12.I have been asked to vary the costs order nisi in the main action, which I do as follows: I order that the 1^st defendant’s own costs to be taxed in accordance with the Legal Aid Regulations (Cap 91A).