Tsoi Chik Sang Lawrence v. Tasty Catering Group Ltd and Others

HCMP 823/2018

[2021] HKCFI 2749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS No 823 OF 2018

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Before: Hon Au-Yeung J in Chambers

Date of Hearing: 10 September 2021

Date of Decision: 10 September 2021

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D E C I S I O N

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Introduction

1.On 30 January 2019, this Court ordered, by consent, that the Plaintiff do have leave to wholly discontinue the proceedings and to pay costs to D1 to D4, and D7 to D9 to be taxed if not agreed on a party-to-party basis.

2.The Plaintiff has settled the costs due to D9.  As for D4, the Plaintiff has agreed to extend the time for commencing taxation pending outcome of the negotiation for settlement and substantive taxation will be held later on this month.

3.That leaves D1-D3, D7-D8 (collectively “Defendants”) whose time for commencing taxation has expired on 29 January 2021.  They are now applying by summons for extension of time to commence taxation out of time.

4.The Plaintiff opposes the application saying that there was inexcusable and inordinate delay and that there would be prejudice to the Plaintiff if leave is granted.

5.At today’s hearing, I have declined to deal with the matter and directed that the summons be dealt with by a taxing master by way of paper disposal. The Plaintiff does not oppose the continuation of the summons in that manner. Here are my reasons for the direction.

Legal principles

6.A party is not entitled to commence taxation proceedings 2 years after a costs order that came with disposal of an action (“final costs order”) unless extension is granted by the Court: Order 62, rule 22(7) of the Rules of the High Court (“RHC”).

7.The power to extend the time for commencement of taxation vests in the taxing master and not the judge who made the original costs order.  The taxing master has power to do so even though the application for extension is not made until after expiration of the relevant period: Order 62, rule 16(1)(a) and 16(3) RHC.

Application of the legal principles

8.In the present case, the margin notes to the Defendant’s summons refer to Order 62, rule 22(7)(b) of RHC and the inherent jurisdiction of the Court.

9.With respect, neither are helpful. 

(1)  Order 62, rule 22(7)(b) provides, where relevant, that a receiving party is not entitled to commence taxation proceedings after the expiry of 2 years from the final costs order or the extended period granted by the Court.  It does not stipulate where the receiving party should go to obtain the extension of time.

(2)  Order 62 governs the taxation procedure.  The taxing master has power under rule 16 to extend time, and/or to penalize the party in default by, eg denying him costs or interest on costs under rule 22(5).  There is hardly any need to invoke the inherent jurisdiction at all. 

10.Ms Li, counsel for the Defendants, also relies on the general powers of the Court to extend time and its case management powers under Order 1B, rule 1(2)(a) for the power to extend the time for compliance with any rule or court order.

11.With respect, if there is a specific provision to govern extension of time in taxation matters, it is not necessary to resort to general powers under Order 1B.  Moreover, a judge only case manages a matter which is within his/her (and not a taxing master’s) jurisdiction.

12.Ms Li has referred to 2 authorities as to the judge’s powers to extend time, but I am of the view that they do not advance her position:

(1)  In Wing Ming Garment Factory Ltd v Incorporated Owners of Wing Ming Industrial Centre [2012] 1 HKC 290, Recorder Jat SC upheld an order for extension of time to commence taxation under Order 22, rule 16.  The receiving party did apply to the taxing master as the first port of call.

(2)  In China Citic Bank International Ltd v Durrant Simon Patrick Michael [2018] HKCFI 2470, 12 November 2018, §42, DHCJ Joseph Kwan granted extension of time under Order 22, rule 16.  However, the question of whether a judge or taxing master had jurisdiction to entertain the application was not discussed.

13.The issue in this summons is not difficult.  For the above reasons, I therefore gave the direction that the summons should be dealt with by a taxing master by way of paper disposal.

14.The hearing time today is attributable to a jurisdiction question which both sides have missed.  I make no order as to costs for the 20 minutes’ hearing time.  Costs of the summons are otherwise reserved to the taxing master.

Mr YL Zhu, instructed by M K Lam & Co, for the Plaintiff

Ms Winnie Li, instructed by Johnny K K Leung & Co, for the 1^st to 3^rd, 7^th and 8^th Defendants