Ng Kit, The Legal Representative and The Sole Beneficiary of the Estate of Ng Kwun Yuen, Deceased v. Wu Tsun Hua and Others

HCA 201/2017

[2021] HKCFI 1350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 201 OF 2017

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BETWEEN

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Before:  Deputy High Court Judge Paul Lam SC for paper disposal

Date of Written Submissions:  23 April and 4 May 2021

Date of Decision:  14 May 2021

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DECISION ON COSTS

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1.In my judgment handed down on 14 April 2021, I ordered that the Defendants(“Ds”)’ costs shall be assessed summarily. Pursuant to my directions, the 2^nd Defendant (“D2”) filed an affirmation made on 23 April 2021, and the Plaintiff(“P”)’s solicitors filed a statement of objections dated 4 May 2021.

2.I shall apply the principles set out in Hong Kong Civil Procedure 2021, vol. 1, §§62/9/10-62/9/12 at pp 1313-1315 and Poon Shu Fan v Wong Tin Yan [2012] 5 HKLRD 512. In short, a summary assessment requires a two-stage approach. If the total costs claimed appear proportionate, then all that is normally required is that each item should have been reasonably incurred and the cost reasonable. But if the overall costs appear disproportionate, then the court would have to be satisfied that each item is necessary and its cost is reasonable. It is also necessary to bear in mind that the court will not embark on a mini-taxation and shall adopt a broad brush approach (Practice Direction 14.3, §13).

3.D2’s affirmation refers to four items. I shall deal with the first three items first:

(a)  First, she stated that Ds had incurred a total sum of HK$73,238 as legal fees paid to previous solicitors and the mediator.

(b)  Second, she stated that a total sum of about HK$7,500 had been incurred as airfares between Hong Kong and Taiwan relating to three trips made by her mother, the 1^st Defendant (“D1”), for attending court hearings.

(c)  Third, she claimed that she had spent 113.5 hours, her husband had spent 40 hours, D1 had spent 8 hours, Jia had spent 2 hours and Lu had spent 8 hours, on this case. The total number of hours is (113.5+40+8+2+8) = 171.5.  It is not in dispute that an hourly rate of HK$200 should be adopted (Hong Kong Civil Procedure 2021, vol. 1, §62/28A/2 at p 1337). The total sum would be 171.5 X HK$200 = HK$34,300.

(d)  Hence, the total sum should be:

HK$(73,238 + 7,500 + 34,300) = HK$115,038.

4.P’s position may be summarised as follows:

(a)  For the first item, only HK$20,500 should be allowed mainly because D2’s claims were not supported by receipts and each party shall bear its own mediation costs.

(b)  For the second item, no sum should be allowed mainly because D2’s claims were not supported by receipts and Ds would travel to Hong Kong from time to time in any event.

(c)  For the third item, only a total of 60.5 hours should be allowed, which would mean a total sum of HK$12,100 at the hourly rate of HK$200.

5.I bear in mind that Ds have been acting in person.  Nonetheless, I take the view that the total costs claimed by Ds are proportionate and, indeed, very modest. My decisions on the reasonableness of the individual items, and the objections raised by P, are as follows:

(a)  As to the first item, I agree that Ds should bear their own costs of the mediation in the sum of HK$12,500.  As to solicitors’ fees, D2 has produced receipts and documents supporting a total sum of HK$50,500. One of the receipts was addressed to D2’s husband and I accept D2’s claim that it was related to this action. The two receipts in fact cover a total sum of HK$55,000 but D2 admitted that one of the solicitors had returned HK$5,000. However, no document could be produced to support a total sum of $9,000.  Even if Ds had actually incurred this sum, the court would not normally allow the full amount of solicitors’ fees incurred.  I also note that while some allowance should be given for photocopying fees, no document could be produced to support the amount claimed. Having regarding to these considerations, and adopting a broad brush approach, I shall allow a total sum of HK$51,000.

(b)  As to the second item, D2 was able to produce documents supporting a total sum of TW$20,804 (equivalent to about HK$5,780) for two of the three trips.  As to the trip in respect of which no document could be produced, the amount involved was TW$7,000 (equivalent to about HK$1,790), which is very small and reasonable.  I accept D2’s statement on oath that these were trips that her mother made specifically for the purpose of attending hearings in this action. I am prepared to allow the total sum of HK$7,500.

(c)  As to the third item, I do not think Ds can claim for time spent by Jia and Lu. However, I believe it is reasonable to allow the claim in respect of time spent by D2’s husband, who had clearly provided substantial assistance to Ds in this case. The total number of hours claimed by D1, D2 and D2’s husband is 161.5 hours. I have considered the breakdowns provided by D2. I find them to be modest and reasonable. Adopting a broad brush approach, I shall allow a total sum of HK$32,000.

(d)  Hence, the total sum that I would allow for these three items is:

HK$(51,000 + 7,500 + 32,000) = HK$90,500

6.The fourth item claimed by D2 is a total sum of HK$300,000. She said that P should return HK$100,000 and HK$200,000 that she and her mother had respectively put in her father’s account for investment.  This is not related to costs at all. Further, Ds have not made any counterclaim in this respect. If Ds intend to claim this sum from the estate of the Deceased, I would suggest that they should seek legal advice first.

7.For the above reasons, I assess Ds’ costs summarily at HK$90,500.  This is the sum that P shall pay to Ds.

Christine M. Koo & Ip, Solicitors & Notaries LLP, for the Plaintiff

The 1^st Defendant acting in person

The 2^nd Defendant acting in person

The 3^rd Defendant acting in person