Lau Koon Ying Matthew As the Executor of the Estate of Lau Yiu Wing, Deceased (“The Deceased”) v. Lau Tark Wing and Another

HCAP 23/2013
HCA 2305/2012
HCA 2306/2012

[2020] HKCFI 3129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 23 OF 2013

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BETWEEN

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2305 OF 2012

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BETWEEN

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2306 OF 2012

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BETWEEN

(Consolidated by Order of Master K Lo dated the 9^th September 2013)

(De-consolidated by Order of Registrar K W Lung dated the 24th day of February 2016)

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(Heard together)

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D E C I S I O N
(On Variation of Costs Order Nisi)

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Introduction

1.On 21 August 2020, this Court handed down a judgment in relation to the defendants’ appeals against the Master’s decision on taking of accounts etc (“Judgment”).  As set out in the Judgment, this Court allowed the appeal on only one ground, namely Ground 1 in relation to whether the Master had erred in ordering Compound Interests in respect of the relevant principal sums ordered respectively in the 3 Actions.  In this decision, I shall continue to adopt the abbreviations in the Judgment unless otherwise indicated herein. 

2.In the Judgment, this Court made a costs order nisi that P was to pay ⅓ of Ds’ costs of and incidental to the appeal, with certificate for two counsel (“Order Nisi”).  Ds now apply for a variation of the Order Nisi. 

3.Ds seek to vary the Order Nisi in two aspects:

(i) That the Order Nisi in relation to the appeal should be varied to one as set out hereinafter;

(ii) That an order should be made to provide for the costs below.

Orders sought by Ds

4.Ds seek the following orders:

(i) P to pay 80% of Ds’ costs of and incidental to the appeal, with certificate for two Counsel;

(ii) Ds to pay 75% of P’s costs of and incidental to P’s application by summons filed on 20 December 2017 for the taking of account (including the hearing on 23 November 2018 before the Master).

Discussion

Costs of the appeal

5.It was submitted on behalf of Ds  that in depriving them ⅔ of their costs of and incidental to the appeal, the Court’s approach, which appeared to be based on the fact that Ds succeeded on only one out of three grounds of appeal, was wrong in principle, and that the approach should be that the percentage of reduction should be based on a rough and ready estimate  of the time and expense taken up in dealing with the two unsuccessful grounds of appeal, and that taking into the time and costs of the other two grounds, the reduction warranted should be not more than 20% of the costs of the appeal.

6.The Order Nisi was made on a rough basis. Having checked the duration of the hearing, I am prepared to accept that the actual time and effort spent during the hearing on Ground 1 was more than that spent on the other two Grounds. Further, as pointed out by Mr Lam SC, a total of 10 pages of Ds’ Skeleton Submissions for the appeal were dedicated to Ground 1 whereas Grounds 2 and 3 combined only took up 3.5 pages (which was roughly 74% of the combined submissions on the Grounds), and that for P’s Skeleton Submissions, 4.5 pages were allocated to Ground 1 and slightly more than 2 pages for Grounds 2 and 3.   I further accept that Ground 1 involved more legal arguments.

7.Although Ground 2 had no merit, as submitted by Mr Lam, there were two issues identified by this Court under Ground 3, and this Court agreed with Mr Lam’s submissions on the first issue.

8.Having considered all the above and the circumstances in this case, I am prepared to vary the Order Nisi to reflect more closely as to the actual time and effort spent on Ground 1 on which Ds were successful.  I will order P to pay 75% of Ds’ costs of and incidental to the appeal, to be taxed if not agreed, with certificate for two Counsel.

Costs below

9.The Master had awarded the costs to P in relation to the summons issued by P on 20 December 2017 for the taking of account (including the hearing on 28 November 2018 and any reserved costs, with certificate for one Counsel, to be taxed if not agreed.

10.The Master had identified 5 issues and one of the issues was the appropriate period and rate of the interest for the sums to be determined upon the account taking. Mr Lam argued that as this Court held that the Master was wrong on the compound interest point, the question that this Court should consider is, had the Master made the correct decision on this point what would have been the appropriate costs order.

11.Having considered the findings of the Master against Ds and the comments made by the Master in light of the unsatisfactory state of the evidence and accounts adduced by Ds at that time, I am of the view that even if Ds had succeeded on the compound interest point before the Master, the appropriate costs order would have been that P be awarded costs of his summons. 

12.Having regard to the above, I do not propose to disturb the costs order made by the Master.

Order

13.My order is thus the Order Nisi be varied to P to pay 75% of Ds’ costs of and incidental to the appeal, to be taxed if not agreed, with certificate for two Counsel.

14.As for the costs of Ds’ summons issued on 8 September 2020 for variation of the Order Nisi, Ds have succeeded to vary the Order Nisi of the appeal, but failed in respect of the costs below.  I will order P to pay 50% of Ds’ costs of this summons, to be taxed if not agreed.  As the matter is a simple one, I will only allow certificate for one Counsel.

Mr Robin D’Souza, instructed by Wellington Legal, for the plaintiff in HCAP 23/2013, HCA 2305/2012 and HCA 2306/2012

Mr Paul Lam SC and Ms Astina Au, instructed by Hon & Co, for the defendants in HCAP 23/2013, HCA 2305/2012 and HCA 2306/2012