Lam Man Cheung v. Lam Man Yin and Another

HCMP 375/2021 and HCMP 739/2021
(Heard together)

[2022] HKCFI 1588

HCMP 375/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 375 OF 2021

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HCMP 739/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 739 OF 2021

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(Heard together)

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Before:  Hon K Yeung J in Chambers

Dates of Statement of Costs and Reply by the Defendants in HCMP 375/2021 and the 1^st and 2^nd Plaintiffs in HCMP 739/2021: 3 and 13 May 2022

Date of Statement of Objection by the Plaintiff in HCMP 375/2021 and 1^st and 2^nd Defendants in HCMP 739/2021: 10 May 2022

Date of Decision on Costs:  30 May 2022

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D E C I S I O N
O N  C O S T S

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1.I refer to my Judgment of 28 March 2022[1] and my Decision on Costs of 27 April 2022[2] varying the Costs Order Nisi.

2.The is my summary assessment of the costs concerned.

OS/375

3.I deal with the costs of OS/375 first.

4.The Executors, by the Statement of Costs lodged by Messrs Patrick Mak & Tse (“PM&T”) on their behalf, claim:

(a)  costs against MC Lam on party and party basis in the total sum of HK$176,582; and

(b)  their own costs to be paid out of the Estate on Trustee basis in the total sum of HK$93,578, which is the difference between the full costs (of HK$270,160) and the part and party costs (of HK$176,582).

5.Messrs CL & Co (“CL&Co”) have on MC Lam’s behalf filed his Statement of Objection, which I have considered.

6.I consider the party and party costs first:

(a)  In respect of A – the Fee Earners’ Rate, having considered the level of seniority of the solicitors who have the conduct of the action on MC Lam’s behalf, I agree with PM&T that the levels of seniority and experience of the fee earners having the conduct of the matters for the Executors are appropriate;

(b)  In respect of B, I regard the total number of hours of conferences as being reasonable;

(c)  C – Professional Work:

(i)  Bearing in mind the fee earner’s experience, and with counsel having been instructed, I am of the view that the total time of 11 hours for perusal are unreasonably high. The scope of “Legal Research” and “General care and conduct” are also not clear;

(ii)  I assess the costs at HK$70,000.

(d)  D – Counsel Fees:

(i)  No justification has been put forward for the obtaining of preliminary advice from a counsel different from the one who subsequently had the conduct of the matters. There can also be duplication of work as a result;

(ii)  I assess the total fees at HK$30,000.

(e)  With the above specific observations in mind, and otherwise adopting a broad-brush approach, I assess the party and party costs at HK$130,000.

7.In respect of the Executors’ own costs:

(a)  CL&Co, relying on §1 of MY Lam’s affidavit filed on 20 May 2021, make the objection that there were costs incurred by MY Lam in her own capacity. I reject that objection. What MY Lam says therein is that “I am making this Affirmation on my own behalf and I am also duly authorized by [MP Lam]…” Those words do not say or show that any part of the Defendants’ costs in the proceedings were “incurred in MY Lam’s own capacity”, as CL&Co claim at page 11 of their objections. The Defendants are sued in their capacity as executors;

(b)  Assessed on Trustee basis, I allow the total costs at HK$270,160;

(c)  I assess the Executors’ own costs at HK$140,160.

OS/739

8.I next consider the costs of OS/739.

9.MY Lam and MP Lam claim:

(a)  costs against MC Lam and Jiao on party and party basis in the total sum of HK$119,782; and

(b)  The “Own Costs of the 1^st and 2^nd Plaintiffs/Executors” to be paid out of the Estate on Trustee basis in the total sum of HK$47,089, which is the difference between the full costs (of HK$166,871) and the part and party costs (of HK$119,782).

10.CL&Co have on MC Lam filed his Statement of Objection, which I have considered.

11.I consider the party and party costs first:

(a)  In respect of A – the Fee Earners’ Rate, for the same reasons I have given in respect OS/375, I agree with PM&T that the levels of seniority and experience of the fee earners having the conduct of the matters for MY Lam and MP Lam are appropriate.

(b)  C – Professional Work:

(i)  Bearing in mind the fee earner’s experience, and with counsel having been instructed, I am of the view that the total time of 6.5 hours for perusal are unreasonably side. The scope of “Legal Research” and “General care and conduct” are also not clear;

(ii)  I assess the costs at HK$50,000.

(c)  D – Counsel Fees:

(i)  Bearing in mind the substantial overlap between OS/375 and OS/739, I regard the fee for drafting the Originating Summons and affirmation in support of HK$20,000 as being on the high side. I allow only HK$15,000;

(ii)  I allow the total fees of HK$35,000.

(d)  With the above specific observations in mind, and otherwise adopting a broad-brush approach, I assess the party and party costs at HK$100,000.

12.In respect of the Executors’ own costs:

(a)  In respect of OS/739, I accept CL&Co’s objection that any costs incurred by MY Lam in her own capacity should not be borne by the Estate. As the heading of the Originating Summons shows, she is suing both in her personal capacity and in her capacity as executrix;

(b)  Having regards to the matters I observed at §11, and otherwise adopting a broad-brush approach, I summarily assess the total costs at HK$140,000;

(c)  The difference between the total costs and party and party costs is hence HK$40,000;

(d)  MY Lam is suing in her own capacity and in her capacity as executrix. MP Lam is suing solely in his capacity as executor. On such basis, adopting a broad-brush approach, and without aiming at attaining any arithmetical accuracy, I adopt the percentage of 75% and assess the Executors’ own costs at HK$30,000.

13.I otherwise make no further costs order in respect of this assessment.

Statement of Objection by CL & Co Solicitors, for the Plaintiff in HCMP 375/2021 and 1^st and 2^nd Defendants in HCMP 739/2021

Statement of Costs and Reply by Patrick Mak & Tse, for the Defendants in HCMP 375/2021 and the 1^st and 2^nd Plaintiffs in HCMP 739/2021