China Citic Bank International Ltd v. Durrant Simon Patrick Michael

HCMP 3196/2013

[2018] HKCFI 2470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3196 OF 2013

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Before: Deputy High Court Judge Joseph Kwan in Chambers

Date of Hearing: 17 January 2018

Date of Judgment: 12 November 2018

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JUDGMENT

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Introduction

1.There are five Summonses taken out by the Defendants:

(a) Summons dated 1 August 2017 by the Defendant for wasted costs against solicitor Hau Wing Shing, Vincent (“Mr Hau”) of the Plaintiff’s solicitor; (the “1st Summons”)

(b) Summons dated 1 August 2017 by the Defendant for an orderto deny the costs claimed by the Plaintiff (the “2nd Summons”);

(c) Summons dated 1 August 2017 by the Defendant for various items against the Plaintiff including an order to stay taxation proceedings and the variation of interest payment (the “3^rd Summons”);

(d) Summons dated 18 August 2017 by the Defendant objecting to the commencement of taxation out of time (the “4^th Summons”); and

(e) Summons dated 4 September 2017 by the Plaintiff for leave to commence taxation out of time (the “5^th Summons”).

2.In this action, the Plaintiff has obtained monetary judgment and possession order from Master Leong of the High Court on 11 February 2014 (“Master Leong’s Order”) against the Defendant in relation to a mortgage deed dated 19 December 2000 over a propertyknown as Unit 04 on 42^ndFloor, Southorn Garden, No 2 O’Brien Road, Hong Kong (the “Property”).

3.The Defendant appealed against Master Leong’s Order.  The appeal was dismissed by Deputy High Court Judge S T Poon on 23 June 2014.  The Defendant appealed against such order and the appeal was dismissed by the Court of Appeal on 23 June 2016. The Defendant sought leave to appeal to the Court of Final Appeal and the application was dismissed first by the Court of Appeal on 27 July 2016. Another application for leave was refused by the Appeal Committee of the Court of Final Appeal on 8 December 2016.

4.On 2 May 2017, the Plaintiff recovered vacant possession of the Property from the Defendant.

5.Since then, various summonses were filed by the Defendant, some of which I would refer to below.  Suffice to say that those summonses together with the Defendant’s appeals were all dismissed by the courts.

6.Meanwhile, the Property was sold in October 2017 for HK$11,800,000.

7.By the order of Master Lai on 5 September 2017 and the orderof Deputy High Court Judge To on 22 September 2017, all five summonses were adjourned and subsequently heard before me.

1st Summons and 2^nd Summons

8.On 1 August 2017, the Defendant filed two identical summonses as the 1^st Summons and the 2^nd Summons before the Court of Appeal in CACV 127/2014.  On the same date, the Defendant filed two identical summonses in both the Court of First Instance and the Court of Appeal for wasted costs against another Plaintiff’s solicitor, Chan Ning Chun, Charles.  

9.The same or substantially the same arguments were made in the Defendant’s affirmations in the Court of Appeal and in support of the 1^st Summons and the 2^nd Summons.  The three summonses were dismissed by the Court of Appeal on 24 November 2017.  I shall refer to the judgment given by Madam Justice Kwan JA (“Kwan JA’s Judgment”) in that appeal.

10.Various allegations were made by the Defendant in support ofthe wasted costs application.  These arguments have been dealt with and rejected by the Court of Appeal.  I respectfully agree with what was said in paragraphs 13 to 16 of Kwan JA’s Judgment:

“ 13. In short, it is the defendant’s contention that the plaintiff should be denied their costs in CACV 127/2014 and HCMP 3196/2013 notwithstanding the costs awards in the High Court and the Court of Appeal because of ‘improper, unreasonable and dishonest actions’ by the plaintiff’s solicitors, against whom he sought wasted costs orders.  He alleged that the solicitors ‘withheld documents and information’ from the court ‘which would have allowed the court and the defendant to determine or not the accuracy of the Plaintiff’s claim’.  He accused the solicitors of refusing to provide proof or documents about any aspect of the plaintiff’s claim and thereby increasing the legal costs, turning a ‘simple case with claimed costs of $27,500 into a$500,000 bounty for the partner’s law firm and a windfall of over $700,000 interest to their client’.  He claimed he only obtained evidence and knowledge about such matters when he received the bills of costs in May 2017.  He contended that if the solicitorshad ‘proven the accuracy of each element of the plaintiff’s claim before Master Leong, as they were legally required to do’, none of the costs incurred in the two bills of costs would have arisen.

14. Allegations that the plaintiff had failed to provide sufficientinformation to prove the accuracy of the amounts claimed are not new.  They had been raised before the deputy judge and before this court at the hearing of the appeal and rejected in both judgments.  Nor do we accept the defendant had no knowledge of the matters he complained of until he received the bills of costs.  Save as to the amount of costs claimed and the time spent, he was fully aware of the evidence adduced by the plaintiff as it was his persistent complaint that the plaintiff had failed to provide sufficient documents in support of the amounts claimed.  The summonses are just an attempt to re-open matters that had been litigated and determined against the defendant.

15. The awards of costs made by this court in our judgments of 23 June 2016 and 27 July 2016 are final, subject only to taxation of the amounts claimed on an indemnity basis.  The defendant has exhausted all avenues of appeal.  To entertain the summonses would violate the principle of functus officio.

16. There is no question of this court re-visiting the awards of costs and making a new order denying the plaintiff the costs awarded, or making wasted costs orders against the solicitors based on allegations which had been raised substantially before the deputy judge and before this court at the hearing of the appeal and were rejected.  To allow the defendant to seek wasted costs orders on the allegations he makes would be a collateral attack on the judgments of the deputy judge and of this court and is an abuse of process of the court.”

11.The allegations against the Plaintiff for failure to provide sufficient information to prove the amounts claimed have been raised and dealt with by Deputy High Court Judge S T Poon and the Court of Appeal during the substantive appeals.  Both courts have already made their decisions on costs. Since the costs orders had been made absolute and were perfected, the court was functus officio.By the 1^st Summons, the Defendant is essentially seeking to challenge such costs order which is outside my jurisdiction to do so. (See paragraph 15 of Kwan JA’s Judgment and the cases of Poon Ching Man v Lam Hoi Pun [2015] 3 HKLRD 57 and RTX Products Hong Kong Limited v Li Yiu Fai HCA 1777/2009 (12 November 2014), Anthony Chan J.) It is also an abuse of the court’s process.

12.The Defendant’s 2^nd Summons to deny the Plaintiff costs has the same fatal problems as the 1^st Summons.   

13.The Defendant could appeal against the costs order.  However, in the present case, the Defendant’s substantive appeal had been dismissed by the Court of Appeal and leave to appeal to the Court of Final Appeal had been refused by the Appeal Committee of the Court of Final Appeal.  The application to vary the costs order or to deny the Plaintiff’s costs is clearly misconceived.

14.The above would be sufficient in dismissing the 1st  Summons and the 2nd  Summons. In any event, the Defendant has failed to satisfy the requirements for wasted costs order as set out in Order 62, rule 8B(1) and (3) of the Rules of the High Court.

15.The Defendant alleged that Mr Hau had failed to disclose the relevant documents and/or information to the court during the hearings thereby causing unnecessary proceedings.  However, in hearing the substantive appeals, neither Deputy High Court Judge S T Poon nor the Court of Appeal found that Mr Hau or the Plaintiff’s solicitors had acted improperly or without reasonable cause.  There was no finding or suggestion by the courts that Mr Hau were guilty of undue delay or any other misconduct or default in the legal proceedings.  Despite given the chance to do so, the Defendant has not provided any credible evidence to support his case against Mr Hau. 

16.On the contrary, in the judgment of Deputy High Court Judge S T Poon dated 23 June 2014, the learned judge had dealt with the Defendant’s allegations and found that:

(a) the Plaintiff had adduced, by way of a further affidavit, information relating to the monthly arrears and interest rates as requested by the Defendant;

(b) the further affidavit has helped the judge in confirming the calculation of the outstanding loan amount claimed by the Plaintiff; 

(c) the Plaintiff’s evidence reflected accurately the states of the relevant mortgage loan accounts.

(See paragraphs 16 to 20 of the decision of Deputy High Court Judge S T Poon on 23 June 2014.)

17.On appeal, the Court of Appeal held that there was no or no credible evidence that prior to the judgment given in Master Leong’s Order, the Defendant had disputed or challenged the accuracy of the amounts claimed.  It was only when the appeal was heard before Deputy High Court Judge S T Poon that the Defendant filed affirmations disputing the accuracy of the amounts claimed.  As a result, the Plaintiff had to file two further affidavits in reply and it was proper for the Deputy Judge to allow such evidence.  The Court of Appeal also affirmed Deputy High Court Judges S T Poon’s finding that there was no substance in the Defendant’s complaints on the sums claimed by the Plaintiff (see paragraphs 27 and 36 of the judgment of the Court of Appeal on 23 June 2016).

18.For the reasons aforesaid, I dismiss the 1st Summons and the 2nd Summons taken out by the Defendant.

The 3^rd Summons

19.By the 3^rd Summons, the Defendant seeks the following order:   

(a) to save Court’s time and costs, the taxation proceedings and Master Chow unless order dated 18 July 2017 be stayed until the resolution of the 1st Summons and the 2nd Summons;

(b) that the interest on Master Leong’s Order be varied from 8% per annum to 0% per annum from 2 May 2017, due to the Plaintiff’s repossession of the Property;

(c) that all hearings be stayed until after 10 September 2017 as the Defendant would be out of Hong Kong;

(d) that since the Plaintiff has made no move to sell the Property since repossessing it on 2 May 2017, the Plaintiff be required to give the Defendant access to the equity of the Property in the form of loan or overdraft in the amount of HK$80,000 for general living and work expenses and for covering court preparation costs;

(e) that the Plaintiff shall pay interest to the Defendant (monthly) at judgment rate of 8% per annum on the equity of the Property over and above the amount claimed under Master Leong’s Order; and

(f) costs of the application be paid by the Plaintiff to the Defendant.

20.In relation to paragraph 19(a) above, Master Chow’s unless order relates to the taxation of the Plaintiff’s costs of this proceedings. Since the taxation would only proceed pending the determination of the five summonses before me, there is no need or reason to grant the stay requested.

21.In relation to paragraph 19(b) above, interest should be charged up to repayment and not merely up to the repossession of the Property.  The Defendant’s application is misconceived.

22.In relation to paragraph 19(c) above, this has been superceded by event.

23.In relation to paragraph 19(d) above, I fail to see any proper ground to make such an order.  The Property had been sold on 18 December 2017 after the issue of the 3^rd Summons.  The Plaintiff informed the Court and the Defendant that as there were other creditors having interest in the Property, the surplus of the sale of the Property had been dealt with pursuant to section 54 of the Conveyancing and Property Ordinance (Cap 219):

“ 54. Any money received by a mortgagee or a receiver from the sale or other dealing with the mortgaged land or any security comprised in the mortgage shall be applied according to the following priority—

(a) in discharge of all rent, taxes, rates and other outgoings due and affecting the mortgaged land;

(b) unless the mortgaged land is sold subject to a prior incumbrance, in discharge of that prior incumbrance;

(c) in payment of the receiver’s lawful remuneration, costs, charges and expenses and all lawful costs and expenses properly incurred in the sale or other dealing;

(d) in payment of mortgage money, interest and costs due under the mortgage,

and any residue shall be paid to the person who, immediately before any sale or other dealing, was entitled to the mortgaged land or authorized to give a receipt for the proceeds of the sale of that land.”

24.It is therefore unnecessary for me to make any other order relating to the surplus.

25.In fact, similar argument was made by the Defendant before the Honourable Mr Justice Chow seeking the payment by the Plaintiff of at least 50% of the proceeds of sale of the Property.  In paragraph 12 of the decision, the learned judge rejected the Defendant’s argument and said that:

“ 12. Under [section 54 of the Conveyancing and Property Ordinance], a mortgagee is required to apply the proceeds of sale of a mortgaged property in the order mentioned in sub-paragraphs (a) to (d) and pay the residue (if any) to ‘the person who, immediately before any sale or other dealing, was entitled to the mortgaged land or authorized to give a receipt for the proceeds of the sale of that land’.  Such person would generally be the next subsequent mortgagee or, if there is no subsequent mortgagee, the mortgagor (see Nield S and Da Roza AM, Hong Kong Conveyancing and Property Law Handbook (2007), paragraph CP54.10).  As mentioned above, there are a number of subsequent encumbrancers after the plaintiff.  The defendant says that some of those subsequent encumbranc[er]s have been paid off, and there is one encumbrancer (Mr Chan Wing Sun) who has agreed to remove his encumbrance within 7 days of receipt of the sum of HK$250,000.  It is not necessary for the court in the present application to determine who would be the next encumbrancer to whom the plaintiff should pay the residue of the proceeds of sale, because it is the plaintiff’s duty to ascertain the person next entitled to the residue of the proceeds of sale.  There is also no evidence to suggest that the plaintiff will not apply the proceeds of sale of the Property in accordance with Section 54 of the Conveyancing and Property Ordinance.  I should mention that Mr Ip has, on behalf of the plaintiff, given an undertaking to the court to hand over the residue of theproceeds of sale to the next person entitled thereto within 14 days after completion of the sale of the Property.  The defendant has failed, in my view, to make out a case that he is entitled to be paid directly by the plaintiff 50% or more of the proceeds of sale (after deduction of the outstanding amounts due under the subsisting encumbrances) within 24 hours of the date of completion.”

26.Similarly, there is no proper basis for the Defendant to require the Plaintiff to pay interest on the equity of the Property as referred to in paragraph 19(e) above.

27.By reason of the foregoing, the whole of the 3^rd Summons is dismissed.

4^th Summons and 5^th Summons

28.These two summonses can be dealt with together.  Under the 5^th Summons, the Plaintiff sought leave to file the Notice of Commencement of Taxation and the bill of costs of the Plaintiff in these proceedings out of time.  By the 4^th Summons, the Defendant seeks to oppose the Plaintiff’s application and he seeks an order to dismiss the Plaintiff’s taxation application.

29.The taxation relates to the costs incurred by the Plaintiff in dealing with the appeal before Deputy High Court Judge S T Poon,who rendered a judgment on 23 June 2014 as well as the hearing before Deputy High Court Judge B Chu (as she then was) who rendered her judgment on 8 July 2014. According to Order 62, rule 22(7) and (9) of the Rules of the High Court, taxation should commence within two years of judgment, namely by 23 June 2016 and 8 July 2016 respectively.  Instead, the Notice of Commencement of Taxation was filed on 25 April 2017, which was about 10 months late. 

30.Order 62, rule 16 of the Rules of the High Court provides that:

“ Extension etc., of time (O. 62, r. 16)

(1) A taxing master may—

(a) extend the period within which a party is required by or under this Order to begin proceedings for taxation or to do anything in or in connection with proceedings before that master;

(b) extend the period provided by rule 33(2) beyond the signing of the taxing officer’s certificate by setting the certificate aside;

(c) where no period is specified by or under this Order or by the Court for the doing of anything in or in connection with such proceedings, specify the period within which the thing is to be done.

(2) Where an order of the Court specifies a period within which anything is to be done by or before a taxing master, then unless the Court otherwise directs, the taxing master may from time to time extend the period so specified on such terms (if any) as he thinks just.

(3) A taxing master may extend any such period as is referred to in the foregoing provisions of this rule although the application for extension is not made until after the expiration of that period.”

31.In the case of Commissioner of Inland Revenue v Li & Fung (Trading) Ltd CACV 86/2011, 4 March 2014, per Master Levy, the Master said in paragraph 24 :

“ 24. In this case, the on-going proceedings essentially refer to the appeal brought by the Commissioner to the Court of Appeal with the justification having been based on the possibility of the Court of Appeal overturning the previous costs decisions, whichmight have the consequence of reversing the previous costs orders.  In essence, whether the existence of a connected on-going proceeding would justify delaying the commencement of a taxation proceeding, in my view, depends on the facts of each case.  When it is considered that there is a real likelihood that the outcome of an on-going matter in the same proceedings such as a pending appeal—subject to other considerations such as the time likely to be required for the disposal of the pending proceedings, the nature of such proceedings etc—‌ may likely impact on the ultimate costs liabilities of the parties, it may be reasonable to withhold taxation proceedings until the conclusion of the on-going proceedings.  If however, the on-going proceedings may only result in the setting-off of costs liabilities against each other, it would unlikely be a sufficient excuse for delaying the taxation proceedings.”

32.One of the reasons given in that case for the delay was the existence of an ongoing appeal and the possibility that the appeal court would reverse the previous costs order having been made.  It was therefore commercially sensible to proceed with taxation after the costs liabilities could be finally determined. That reason was accepted by Master Levy in view of the tight time schedules of the proceedings, the complexity of the case and the ongoing appeal.  I would add that each case would depend on its own facts and I have to consider the circumstances of the case before me.

33.In that case, despitethe delay of 7 months, the Master gave the extension of time but exercised her discretion under Order 62, rule 22(5) of the Rules of the High Court to deprive the applicant of its interest on its costs for a period of 5 months (rather than the full 7 months in view of the opponent’s conduct).

34.Order 62, rule 22(5) provides that:

“ (5) On the taxation of a bill of costs, whether or not an order has been made under paragraph (3), the taxing master, if heis satisfied that there has been undue delay in commencing taxation proceedings or in proceeding with the taxation—

(a) may make such order as he thinks fit as to the costs of any application or as to the costs of the taxation;

(b) may disallow any part of the costs to be taxed pursuant to the costs order; and

(c) may, in relation to the taxed costs or any part of those costs, disallow interest or reduce the period for which interest is payable or the rate at which interest is payable.”

35.In the case of Wing Ming Garment Factory Ltd v The Incorporated Owners of Wing Ming Industrial Centre & another CACV 27/2008, 29 December 2011, Mr Recorder Jat SC clarified that the time limit imposed under Order 62, rule 16 should not be considered as the limitation period under the Limitation Ordinance.  In paragraphs 31 and 32 of the judgment :

“ 2-Year limitation period?

31.   Mr Barlow’s submission that the 2-year period under O. 62 r. 22(7) is a ‘limitation period’ may have been inspired by the notes in the current edition of Hong Kong Civil Procedure 2012 at para 62/22/6.  However, as Mr Lam quite rightly pointedout, the 2-year period under r.22(7) is not analogous to ‘limitationperiods’ as that terms is normally understood in the technical sense.  Here, although the effect of failure to comply with the 2-year period is that the right to tax is ‘lost’, there are 2 critical differences between r.22(7) and limitations under the Limitation Ordinance:

3[1].1   First, as a general rule and subject to specific exceptions,limitation periods under the Limitation Ordinance are not capable of being extended.  On the other hand,the period under O. 62 r. 22(7) can be extended under O. 62 r. 16.

3[1].2   Secondly, under the Limitation Ordinance, once time runs out, the cause of action will be barred.  There is no power to resurrect it.  In contrast, O. 62 r. 16(3) expressly permits retrospective extension of time to commence taxation proceedings.

32.   Thus, although it may be a convenient way to describe the 2-year limit under O. 62 r. 22(7) as a ‘limitation period’, such usage is potentially misleading.  It is probably better to avoid using the term to describe the time limit under r. 22(7).”

36.The Recorder further sets out the factors to be taken into account in the exercise of discretion, namely (a) the length of delay; (b) who caused the delay (in that case the 2^nd defendant’s solicitors); (c) the prejudice (if any) suffered by the paying party as a result of the delay) (see paragraphs 37 to 42, 48 to 50 of the judgment:

“ Exercise of discretion

37. I therefore proceed to consider whether I should exercise my discretion to extend time in the circumstances of this case.

38. In my judgment, to refuse the extension of time sought would be a disproportionate penalty to D2’s delay.  I have come to this conclusion taking into account the following factors.

39. First, in my view, the delay is substantial.  Although the time to commence taxation only expired on 1 April 2011, this was only because of the operation of O. 62 r. 22(8). On the facts, Reyes J made the costs order in D2’s favour in January 2008.  The appeal to the Court of Appeal was dismissed in June 2008.  The delay in relation to the costs order made by the Judge is over 3 years and that in relation to the Court of Appeal is almost 3 years.

40. However, I must also take into account the long procedural history of these proceedings.  Although I accept that D2 and W&C did not proceed to tax in order to avoid wasting time and costs should the Appellants succeed in their appeal, D2 could have protected its position on costs by securing their consent to a moratorium.  If no consent were forthcoming, D2 should have proceeded to taxation.  It has not done so and must bear responsibility for the delay.

41. On the whole, I would consider the delay to be substantial and this is a factor against D2.

42. Secondly, I agree with Mr Lam that the delay was not dueto any deliberate conduct or fault on the part of D2.  It was caused by W&C’s oversight.  This is a factor to be taken into account.

….

48. Thirdly, I take into account the fact that the delay has caused no prejudice to the Appellants.  Indeed, as Mr Lam has pointed out, to deny the extension of time would mean that the Appellants would get a windfall.  This factor was considered to be weighty in the two English Court of Appeal decisions cited above, i.e. Toniello and Southwark LBC, in a relevantly similar context (both cases concerned extension of time to commence taxation under the County Court Rules, which were similar to our scheme under O. 62 r. 22(7) but the time limit there was 3 months).  In my view, this factor weighs in favour of D2.

49. Finally, I agree with Mr Lam that there is sufficient flexibility given to the taxing master under O. 62 r. 22(5) to impose whatever ‘penalty’ that the master may consider to be appropriate in the circumstances of this case.  Such power includes depriving the receiving party a portion of the costs so taxed, or to deprive him of all or part of the interest.  Mr Lam submitted, and I accept, that it should be up to the taxing master to deploy this built-in mechanism in light of the circumstances of the case to achieve a just result.

50. Taking into account the above considerations, in my judgment the Court should exercise its discretion to extend time to commence taxation proceedings.  To refuse the extension would, in my judgment, be a wholly disproportionate penalty.”

37.The above factors are not meant to be the rule in every case. However, they do provide sensible guidance on how discretion is to be exercised. 

38.In the present case, the Defendant appealed to the Court of Appeal on 24 June 2014.  The Plaintiff submitted that due to the repeated delays of the Defendant in complying with the various Court’s directions and the filing of his appeal bundles, the appeal was only heard on 17 June 2016.  Judgment was given by the Court of Appeal two years later on 23 June 2016.

39.Subsequently, the Defendant made various applications to seek leave to appeal to the Court of Final Appeal.  At the end, the Defendant’s application for leave was refused by the Appeal Committee of the Court of Final Appeal on 8 December 2016.

40.The Plaintiff filed an Affirmation of Mr Hau on 4 September 2017 in support of the 5^th Summons.  Mr Hau said that soon after 8 December 2016, the Plaintiff proceeded with the enforcement of Master Leong’s Order.  By the 3^rd Writ of Possession and Fieri Facias Combined dated 21 December 2016, the Plaintiff recovered possession of the Property on 2 May 2017.

41.Meanwhile in January 2017, the Plaintiff instructed a law costsdraftsman to prepare the bills of costs for taxation.  Due to the complexityof the procedural history, the bills of costs were only completed and served on the Defendant on 10 April 2017.  As there was no agreement by the Defendant, the Plaintiff filed the Notice of Commencement of Taxation and the Bill of Costs on 25 April 2017.

42.In the exercise of my discretion, I have considered the following factors:

(a)   Reasons for the delay: Mr Hau said as the Defendant lodged his appeal immediately after the relevant judgments had been handed down, the Plaintiff did not want to incur extra time and costs to proceed to taxation of costs pending the appeals to the Court of Appeal and the Court of Final Appeal.  The Plaintiff did not proceed with the taxation as they considered that there was a real likelihood that the outcome of the appeals would likely impact on the ultimate costs liabilities of the parties.  Whilst I consider that generally, it would be prudent to wait for the outcome of the appeal before incurring costs to proceed with taxation, not all ongoing litigation or appeal would justify the delay in proceeding with taxation. In this particular case, appeal was made immediately by the Defendant following the judgment of Deputy High Court JudgeS T Poon.  The Defendant raised a number of issues on appealand he also made some serious allegations against the Plaintiff or its solicitors.  There is merit for the Plaintiff to wait for the outcome of the appeal before proceeding with taxation. Not due to the fault of the Plaintiff, the appeal had taken about two years and the Court of Appeal handed down the judgment on 23 June 2016 which was the deadline for the taxation of the costs arising from Deputy High Court Judge S T Poon’s judgement.  I consider that by then it should be clear from the Court of Appeal’s judgment that any further appeal by the Defendant was going to fail, the Plaintiff should proceed with the taxation rather than to wait for about 6 months until January 2017 to instruct law costs draftsman to prepare the bills of costs.

(b) Length of delay: The length of delay is long, about 9 to 10 months.  I accept that the Plaintiff took prompt action to instruct a law costs draftsman after the decision of the AppealCommittee of the Court of Final Appeal on 8 December 2016. I also consider that the time taken by the law costs draftsman toprepare the bill was not unreasonable, taking into account thenumerous objections and applications made by the Defendant.  In my view, the effect of the delay can be addressed by appropriate sanction under Order 62, rule 22(5).

(c) Prejudice to the Defendant: Apart from the Defendant having to pay interest for the period of delay, there is no evidence of prejudice to the Defendant.  In fact, during the relevant time, the Defendant was pursuing his appeal and it was unlikely that he would expect the Plaintiff to seek to recover the costs fromhim.  On the other hand, if I refuse leave, the Plaintiff would suffer loss for not being able to recover the costs through taxation.  It would be a disproportionate penalty in this case to deny the Plaintiff’s application.

(d) Other consideration: The availability of the wide power to the taxing master to impose sanction for the delay under Order 62, rule 22(5) is another factor to take into consideration. Without limiting the discretion of the taxing Master, I consider that the deduction of the Plaintiff’s claim of interest on its costs for 9 months would be appropriate in this case.

43.Having considered the circumstances of the case, I would exercise my discretion to grant the extension of time sought by the Plaintiffunder the 5^thSummons.  Accordingly, I dismiss the Defendant’s application under the 4^th Summons.

Costs

44.To conclude, I dismiss the 1st Summons, the 2nd Summons, the 3^rd Summons and the 4^th Summons, all issued by the Defendant.  I make an order in terms of the 5^th Summons by the Plaintiff.

45.I consider that costs should follow the event.  Accordingly, I make an order that the Defendant should forthwith pay the Plaintiff’s costs of the 1st Summons, the 2nd Summons, the 3^rdSummons and the 4^th Summons, such costs to be taxed if not agreed.  As to the 5^th Summons, since the Plaintiff has asked that the court should make no order as to costs and since it is the Plaintiff who is seeking the indulgence of the court, I make no order as to costs in relation to the 5^th Summons.

Mr Johnny Ip, of V Hau & Chow, for the Plaintiff

The Defendant appeared in person