Lam Lai Kiu Kelvin and Ng Tsz Kin Brian t/a Yu & Associates, Solicitor v. Cheung Sau Chu Rosanna

HCSA 12/2023

[2023] HKCFI 2375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 12 OF 2023

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM NO. 36282 of 2021)

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D E C I S I O N

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A.  Introduction

1.The Claimant solicitors claimed against the Defendant, their former client, outstanding legal fees at the Small Claims Tribunal (“Tribunal”).

2.After trial, the Tribunal gave judgment in favour of the Claimant on 13 February 2022 (“Decision”).

3.The Adjudicator dismissed the Defendant’s application for review on 2 May 2023 (“Review Decision”).

4.This is the Defendant’s application for leave to appeal lodged on 30 May 2023 (by Form 9) against the Review Decision only.

B.  Facts as found by the Tribunal

5.The Claimant’s case arose from an unpaid bill of costs in the sum of HK$41,264.16, which was sent to the Defendant on 22 April 2020 (“Bill”). The Bill concerned legal fees incurred as a result of the Defendant retaining the Claimant to pursue her personal injuries claim during her attendance at the Claimant’s office on 7 January 2020. This was followed by the Defendant signing a written retainer on 9 January 2020 (“Written Retainer”), and the Claimant issuing a Writ of Summons under case number DCPI 187/2020 (“DCPI Action”) for the Defendant on 20 January 2020.

6.As the Bill remained unpaid despite repeated demands from the Claimant, the Claimant took out the subject claim at the Tribunal on 7 October 2021.

7.As of today, there is no application by the Defendant for an order to tax the Bill pursuant to section 67 of the Legal Practitioners Ordinance (Cap 159).

8.On 13 December 2021, the Claimant was given leave to amend its name from “Yu & Associates, Solicitors (A Firm)” to “Lam Lai Kiu Kelvin and Ng Tsz Kin Brian trading as Yu & Associates, Solicitors”.

9.The Defendant’s defence was three-fold:

(1)  As the Claimant “Yu & Associates, Solicitors” was not a law firm registered with the Law Society of Hong Kong, the Defendant only dealt with “Yu & Associates”. Hence, the Defendant did not engage the Claimant’s services (“Standing Issue”).

(2)  There existed an oral agreement for an agreed fee of HK$5,000 for preparing the writ of summons and indorsement of claim (“Oral Agreement”), and the Written Retainer was signed to cover the costs to be incurred thereafter (“Oral Agreement Issue”).

(3)  During cross-examination of Mr Ng of the Claimant, the Defendant also took issue with whether it was necessary to spend 2.5 hours (as charged in the Bill) in their first meeting to discuss her case (“Billing Issue”).

10.Having heard the evidence, the Tribunal rejected the Defendant’s case, and found that:

(1)  “Yu & Associates”, with or without “, Solicitors” meant the Claimant. The Defendant did engage the Claimant.

(2)  The Oral Agreement did not exist.

(3)  The Claimant had delivered the Bill in compliance with the requirements under section 66 of the Legal Practitioners Ordinance (Cap 159), which the Defendant had not paid and had not raised triable issues thereon.

11.The Tribunal thus ordered the Defendant to pay the Claimant a sum of $38,264.16 (after giving credit to HK$3,000 costs on account) and costs of HK$80.

12.During the Review Application, the Defendant mostly reiterated the same 3 Issues. In addition, she complained about the Tribunal’s refusal of her third application to extend the time to file and serve her perfected grounds of review and documents. The reason relied on by the Defendant was that she needed to search the court files of the DCPI Action (“File Search Issue”).

13.In the Review Decision, the Tribunal dismissed the Review Application on the grounds that the overall evidence of the case was sufficient to show that the Defendant’s defence ought not to be believed, and the materials in the DCPI Action would not have any material bearing on the Adjudicator’s findings.

14.In the present application, the Defendant’s intended grounds of appeal again mostly reiterated the points that have been dealt with in the Review Application.

15.In addition, the Defendant also invited this Court to consider various documents she obtained upon conducting a file search of the DCPI Action.

C.  Legal Principles

16.The burden is on the Defendant to show arguable grounds of appeal involving a question of law or that the claim was outside the jurisdiction of the tribunal. Section 28(1) of the Small Claims Tribunal Ordinance (Cap 338) (“Ordinance”).

17.A party cannot challenge any finding of facts made by the Tribunal because it does not involve any question of law, unless such finding is perverse or irrational; or there was no evidence to support it; or it was made by reference to irrelevant factors or without regard to relevant factors: Chow Mee Yee Millie v Hong Kong Mediation Services Ltd, HCSA 17/2011, 16 February 2012, Au J (as he then was) at §§32 and 37.

D.  Application of the Legal Principles

18.Form 9 contains no ground of appeal. Similarly, the written submissions subsequently lodged by the Defendant do not identify any error of law or show that the claim exceeds the jurisdiction of the Tribunal.

19.All such written submissions can fairly be described as rambling and unfocused documents with a lot of enclosures. The Defendant effectively repeated the grounds of review. They have been dealt with by the Tribunal in the Review Decision, which this Court entirely agrees with.

20.In my view, the Adjudicator had carefully considered the parties’ case on the Standing Issue, the Oral Agreement Issue, and the Billing Issue in both the Decision and the Review Decision. He was therefore entitled to come to his factual findings.

21.The Defendant reiterated in her written submissions that there was no legal basis on the part of the Tribunal in granting leave to amend the Claimant’s name. Without disrespect, this submission is entirely without merit. Ultimately, the gravamen of the Defendant’s complaint on the Standing Issue was whether the Claimant was whom the Defendant engaged. This was a finding of facts that the Tribunal was entitled to make, to which this Court detects no error whatsoever.

22.The Tribunal’s decision on the File Search Issue and his refusal of the Defendant’s application for time extension for the third time were matters in exercise of his discretion in case management. It has not been shown to be arguable that the relevant decision exceeded the generous ambit within which reasonable disagreement is possible and is in fact plainly wrong.

23.For completeness, the Defendant cannot demonstrate from adducing the materials in the DCPI Action any error of law on the part of the Tribunal.

E.  Disposition

24.For the reasons stated above, none of the matters raised by the Defendant disclose any arguable grounds of appeal. The application for leave to appeal is therefore dismissed.

The Applicant appeared in person