Npyj v. Smrc
Read the full judgment text of CAMP 155/2020 on BabelCite. This Court of Appeal judgment was delivered on 20 January 2021 before Hon Cheung and Chu JJA.
Civil procedure – costs – summary assessment – setting aside assessment – photocopy charges – preparation of documents – perusal of documents – late filing of affidavit – Court of Appeal – NPYJ v SMRC – Petitioner's costs assessed at $2,424 – Leave granted for late affidavit – No order on costs of respondent's applications
Legal issues: Photocopy charges assessment · Preparation of documents assessment · Perusal of documents assessment · Costs of respondent's applications
Outcome: Assessment of petitioner's costs set aside and re-assessed at $2,424; leave granted for late affidavit; no order on costs of respondent's applications.
Cited by 5 cases · Cites 2 cases
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CAMP 155/2020 [2021] HKCA 65 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MISCELLANEOUS PROCEEDINGS NO. 155 OF 2020 (ON AN INTENDED APPEAL FROM FCMC 9098 /2018) ______________ BETWEEN
______________ Before: Hon Cheung and Chu JJA in Court Date of Decision: 20 January 2021 ______________ DECISION ______________ Hon Chu JA giving the Decision of the Court: 1.On 19 October 2020, this Court handed down our judgment[1] dismissing the respondent’s summons dated 7 September 2020 with costs to the petitioner. We ordered the petitioner’s costs to be summarily assessed and gave directions for the lodging and service by the petitioner of the statement of costs and by the respondent of the statement of objection, if any. 2.The petitioner filed her statement of costs for summary assessment on 30 October 2020. Not having received a statement of objection from the respondent at the end of the 14-days’ period for doing so, we proceeded to assess the petitioner’s costs. By our order dated 20 November 2020, the petitioner’s costs were summarily assessed at $3,100. The respondent’s letter dated 26 November 2020 3.By letter dated 26 November 2020, the respondent applied to set aside the assessment. On 30 November 2020, Chu JA directed the respondent to file and serve affidavit in support of his application within 14 days, and gave leave to the petitioner to file and serve affidavit in reply, if any, within 14 days thereafter. 4.The respondent filed his supporting affidavit on 16 December 2020, which was late by two days. The petitioner has not filed any evidence in reply. The respondent’s summons dated 16 December 2020 5.By summons filed on 16 December 2020, the respondent applied for leave for the late filing and service of his affidavit, and also for leave to file and serve an affidavit in reply to the petitioner’s affidavit. 6.Considering it is a short delay of two days, and the petitioner has neither raised objection to it nor filed affidavit in reply, we will accept the respondent’s affidavit and give leave for it to be filed out of time. As to the leave to file an affidavit in reply, this is not called for given that the petitioner has not filed any evidence on the application. We make no order on this part of the 16 December 2020 summons. Setting aside application 7.The respondent’s application to set aside the assessment of costs is made on the basis that he had not been served with the statement of costs, hence did not have an opportunity to put in a statement of objection and to be heard. As there is no evidence from the petitioner to counter what the respondent said, we will set aside the assessment made on 20 November 2020 to allow the respondent an opportunity to be heard. Assessment of the petitioner’s costs 8.Pursuant to the directions of 30 November 2020, the respondent had filed a statement of objection. We will assess the petitioner’s costs claimed in her statement of costs having regard to the respondent’s objections. 9.On photocopy charges, the respondent contends that the $100 claimed should not be allowed as there was no need to copy the documents served on the petitioner. 10.This argument overlooks the fact that the petitioner has to make copies of her written submission for the Court of Appeal which requires two copies to be filed. The petitioner also has to serve one copy on the respondent. It is also reasonably expected that she would make a copy for her own retention. On this basis, we will allow $24 for photocopy charges (i.e. 4 copies of 6 pages each at $1 per page[2]). 11.On preparation of documents, the respondent argues that the 5 hours claimed is excessive because the petitioner’s written submission is only six pages and the arguments are broadly the same as those in the court below. 12.We do not agree with the respondent that the petitioner’s written submission is simply a “cut-and-paste” job. Among other things, the petitioner had to take into account the reasons given by the judge below for refusing leave to appeal when preparing the written submission. Having regard to the content of her written submission, we are of the view that the time claimed by the petitioner is not excessive and should be allowed in full. 13.On perusal of documents, the respondent argues that the 10 hours claimed is excessive because (1) other than the summons, draft notice of appeal and the statement for leave to appeal, there are no new documents; (2) the new documents are not lengthy documents; (3) the other documents had been read or considered in the application for leave to appeal in the Family Court; and (4) many, if not all, of the documents would have been considered in the hearings held on 18 May 2020 and 29 September 2020. 14.We accept that the petitioner would have considered a number of the documents in the Application Bundle in dealing with the application for leave to appeal in the Family Court, and some allowance will be given to this when assessing the time spent on the leave application before this Court. We, however, do not accept the respondent’s suggestion that only 1 hour should be allowed for perusal of documents by the petitioner. As conceded by the respondent, the application papers are new to the petitioner. While they may not be very lengthy documents, the petitioner would require to incur time to carefully read and consider them. The fact that the petitioner would have read and considered some or all the documents in the Application Bundle in connection with other hearings, especially hearing subsequent to the leave application before this court, is not a reason for disallowing the time spent by the petitioner for the purpose of the leave application before this Court. 15.Taking a broad brush approach, we would allow 7 hours for perusal of documents. 16.The total amount allowed on the petitioner’s statement of costs is therefore $2,424 ($24 photocopy charge + $1,000 preparation of documents + $1,400 perusal of documents). Costs of the 26 November 2020 application and 16 December 2020 summons 17.We will make no order on the costs of the respondent’s 26 November 2020 application and 16 December 2020 summons. This is because while the respondent succeeded on setting aside the assessment of 20 November 2020 and is entitled to the costs, he is liable to pay the costs of the 16 December 2020 summons as it is occasioned by his delay. On the respondent’s own account, he received the court’s directions on 3 December 2020 and should have sufficient time to put in his supporting affidavit by 14 December 2020. Disposition 18.For the reasons set out above, we make the following orders:
The petitioner, unrepresented, acting in person. The respondent, unrepresented, acting in person. | |||||||||||||
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