The Joint and Several Trustees of the Property of So Ching Wan v. Assen Ltd (in Liquidation) and Others

HCB 4475/2002

[2024] HKCFI [1536]

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 4475 OF 2002

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DETERMINATIONS FOR TAXATION REVIEW AND
CERTIFICATE

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1.This is the paying party’s application to review my rulings made at the taxation of the costs claimed in the bill of costs of the 1^st respondent (the “Receiving Party”) filed herein on 30 June 2021 (the “Bill”).

Brief summary of proceedings

2.In this case Mr So Ching Wan (the “Bankrupt”) was adjudged bankrupt on 19 August 2002 upon a creditor’s petition.

3.Mr Alan Chung Wah Tang (“Mr Tang”) and Mr Wong Kwok Man were appointed as joint and several trustees of the property of the Bankrupt at a creditors’ meeting held on 14 November 2002.

4.On 7 June 2016, Chung J made an order, pursuant to section 29(1) of the Bankruptcy Ordinance (Cap 6), requiring the respondents herein to provide answers and documents as set out in Annex A and Annex B of that order (the “2016 Order”).

5.The application before Chung J was made by the applicant, described as “the Joint and Several Trustees of the Property of So Ching Wan (‘the Bankrupt’)”.

6.On 12 October 2018, Mr Tang signed a summons (the “Summons”) taken out under section 29 of the Bankruptcy Ordinance and Order 45 of the Rules of the High Court (the “RHC”) against the respondents to enforce the 2016 Order. The 1^st respondent by then was in liquidation and Mr Lau Siu Hung (“SL”) and Mr Liang Yang Keng had been appointed as liquidators of the 1^st respondent on 2 November 2016. The applicant also issued another summons dated 6 November 2018 seeking leave to continue these proceedings against the 1^st respondent retrospectively given its liquidation (the “Leave Summons”).

7.The applicant named on the Summons and the Leave Summons was “The Joint and Several Trustees of the Property of So Ching Wan (“Bankrupt”)” and the Summons was signed by Mr Tang as “Joint and Several Trustee of the Property of the Bankrupt”.

8.The Summons was supported by the 3^rd affirmation of Mr Tang filed on 12 October 2018 as “one of the joint and several trustees-in-bankruptcy of the property of the Bankrupt”. No supporting affidavit or affirmation had been filed in respect of the Leave Summons.

9.The Summons was amended on 22 November 2018 (the “Amended Summons”). The Amended Summons was signed by Mr Tang as “Joint and Several Trustee of the Property of the Bankrupt”.

10.On 7 March 2019, the 5^th affirmation of Mr Tang was filed in support of the application by the Amended Summons. The said 5^th affirmation was said to be “filed on behalf of the Joint and Several Trustees of the Discharged Bankrupt”.

11.On 6 June 2019, Deputy High Court Judge William Wong SC dismissed the Amended Summons and the Leave Summons and ordered “the Applicant” (the “Paying Party”) to pay the costs of the respondents for the Amended Summons and the Leave Summons which costs order was varied on 2 July 2019 (the “Costs Order”).

12.The parts of the Costs Order concerning the 1^st respondent provides that:

“1. As for the costs of the Amended Summons including the costs of the hearing on 27^th May 2019 and the reserved costs under the Order dated 16^th November 2018, that:-

(a) … …; and

(b) the Applicant do pay the costs of the 1^st Respondent, on an indemnity basis, to be taxed if not agreed.

2. As for the costs of the Leave Summons including the costs of the hearing on 27^th May 2019 and the reserved costs under the Order dated 16^th November 2018, that the Applicant do pay the costs of the 1^st Respondent, on an indemnity basis, to be taxed if not agreed.”

13.The applicant appealed to the Court of Appeal in CACV 306/2019 against the aforesaid decisions of the learned Deputy Judge (the “Appeal”). The Appeal was dismissed with costs on indemnity basis to be paid by Mr Tang personally and not from the estate of the Bankrupt.

14.The Court of Appeal found that “the proceedings had all along been conducted by Mr Tang himself” (§2.6 of the judgment of the Court of Appeal dated 29 December 2020 (the “CA Judgment”)). In the CA Judgment the Court of Appeal further stated in §2.7 that: “From now on the reference to the applicant must be understood to be referring to Mr Tang himself.”

15.On 30 June 2021, the Receiving Party commenced this taxation under the Costs Order and filed the Bill.

16.Mr Tang, then legally represented by Stevenson Wong & Co, filed his list of objections to the Bill on 16 August 2021 (the “LOO”). In the LOO, Mr Tang raised five preliminary issues (the “Preliminary Issues”), namely:

(1)  no basis for costs claims (“Issue 1”);

(2)  litigant in person (“Issue 2”);

(3)  presentation of time costs and grossly excessive time charges (“Issue 3”);

(4)  charging for work irrelevant to the proceedings (“Issue 4”); and

(5)  undue delay (“Issue 5”).

17.In the “Skeleton Submissions of the Applicant” dated 2 September 2022 lodged for the hearing of 5 September 2022 in the name of Mr Tang “For the Applicant”, Mr Tang confirmed that: “Applicant concedes that there were no undue delays in commencing taxation of HCB Costs Orders.” (§37 of the document) As such, only four Preliminary Issues remained.

18.The taxation hearings for the Bill took place before me on 16 June 2023 and 16 October 2023 (the “Taxation”). Mr Tang attended the hearings personally as the paying party. I ruled on Issues 1 and 2 of the Preliminary Issues at the hearing of 16 June 2023. I was of the view that Issues 3 and 4 of the Preliminary Issues were matters for taxation of the Bill.

19.After the Taxation, on 8 January 2024 Mr Tang (represented by K B Chau & Co) issued a summons to review taxation (the “Review Application”).

20.On 22 February 2024, the Receiving Party filed its answers to Mr Tang’s objections for review.

21.The hearing of the Review Application took place on 21 March 2024 before me (the “Review Hearing”).

22.I heard the parties’ submissions at the Review Hearing. I now issue this determination and certificate setting out my decisions on the Review Items (as defined herein below) and the reasons for my decisions.

Applicable legal principles for taxation on indemnity basis

23.There was no dispute that according to the Costs Order, the costs of the Receiving Party were to be taxed on indemnity basis. Order 62 rule 28(4A) of the Rules of the High Court (the “RHC”) provides that:

“On a taxation on the indemnity basis all costs shall be allowed except insofar as they are of an unreasonable amount or have been unreasonably incurred and any doubts which the taxing master may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the receiving party; and in these rules the term “indemnity basis” (彌償基準) in relation to the taxation of costs shall be construed accordingly.”

24.In EMI Records Ltd v Ian Cameron Wallace Ltd [1982] 2 All ER 980, Sir Robert Megarry V-C stated at 989f that in taxation on indemnity basis: “Everything is included unless it is driven out by the words of exclusion, namely, “except in so far as they are of an unreasonable amount or have been unreasonably incurred”.”

25.Lord Woolf MR further stated in Petrotrade Inc v Texaco Ltd [2001] 4 All ER 853 at §62 that: “… where the costs are assessed on an indemnity basis, the issue of proportionality does not have to be considered. The court only considers whether the costs were unreasonably incurred or for an unreasonable amount. The court will then resolve any doubt in favour of the receiving party.”

26.In Re Wing Fai Construction Co Ltd (Costs: Taxation) (2012) 15 HKCFAR 657, Chan PJ stated that:

“26. I should also add that in assessing what is unreasonable (as opposed to assessing what is reasonable), the court should bear in mind the practical reality that there are litigants who, being understandably more anxious than others to pursue or defend their rights, are willing to pay more than the normal average fees of counsel and solicitors. How much more such a litigant is prepared to pay over and above the normal average fees depends on a variety of factors including in particular, the complexity of the case and the importance of the case to him. In my view, it is not uncommon and certainly cannot be considered as unreasonable for a concerned litigant to adopt such an attitude. On a party and party taxation, it is likely that anything over and above the normal average fees would not be regarded by the court as reasonable and will be taxed off and the receiving party will have to shoulder the shortfall. But if the court, for good reasons, saw fit to award him his costs on a more generous basis (ie on an indemnity basis), I do not think it should be regarded as unreasonable to allow him to recover more than normal average fees so long as they are not clearly excessive or, to use Megarry V-C’s words, absurd or extravagant.”

27.Bearing the above legal principles in mind, I shall look into the whole circumstances of this case to determine whether the various amounts of fee claimed by the Receiving Party were unreasonable, ie absurd or extravagant.

28.Taxation on indemnity basis under the Costs Order only applied to section A of the Bill. In respect of section B of the Bill, which was on costs of this taxation, the taxation was still on party-and-party basis. The applicable principle for such taxation is whether the costs claimed are “proper or necessary”.

Grounds of review

29.In the Review Application, Mr Tang seeks to review my rulings made at the Taxation for 43 items, namely: items 1-4, 11-18, 25.1-25.9, 29, 31, 33-37, 41, 43, 44, 49 and 50 in Section A of the Bill and items 1–10 in Section B of the Bill (the “Review Items”) Mr Tang relies on the following grounds for the Review Application:

(1)  Hourly rates of fee earners should be further reduced (“Ground 1”);

(2)  SL being litigant in person (“Ground 2”)

(3)  Excessive time charged / irrelevant works (“Ground 3”); and

(4)  No leave had been obtained from the Court under sections 182 and 199 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32) (the “Ordinance”) (“Ground 4”).

30.Mr Tang relies on Grounds 1, 2 and 3 for review of all the Review Items. He further relies on Ground 4 for review of items 1-4, 11-18, 25.1-25.9 of Section A of the Bill.

31.Some of the Grounds had been raised as Preliminary Issues. Grounds 1 and 2 had been raised as Issue 2. Ground 3 had been raised as Issues 3 and 4.

32.Mr Tang was represented by Mr Chu of counsel and the Receiving Party was represented by Mr Ng of counsel in making submissions on the Grounds at the Review Hearing.

Ground 1

33.In the Bill, SL claimed his fee and that of Ms Kwok Sin Kwan (“NK”), the principal of SL’s firm, both at the hourly rate of $6,124. At the Taxation, I allowed $4,000 per hour for taxation on indemnity basis and $3,600 per hour for taxation on party-and-party basis for works done by SL and NK.

34.There is no dispute that SL is a professional accountant, not a practising solicitor. As such, when he conducted these court proceedings by himself as liquidator of the 1^st respondent, he would be treated as litigant in person. Order 62 rule 28A of the Rules of High Court (the “RHC”) provides that:

“(1) On a taxation of the costs of a litigant in person there may, subject to the provisions of this rule, be allowed such costs as would have been allowed if the work and disbursements to which the costs relate had been done or made by a solicitor on the litigant’s behalf.

(2) The amount allowed in respect of any item shall be such sum as the taxing master thinks fit not exceeding, except in the case of a disbursement, two-thirds of the sum which in the opinion of the taxing master would have been allowed in respect of that item if the litigant had been represented by a solicitor.

(3) Where in the opinion of the taxing master the litigant has not suffered any pecuniary loss in doing any work to which the costs relate, he should not be allowed in respect of the time reasonably spent by him on the work more than $200 an hour.

(6) For the purposes of this rule a litigant in person does not include a litigant who is a practising solicitor but includes a company or other corporation which is acting without a legal representative.”

35.In Cheuk Shu Yin v Law Yeuk Kan (No 2) [2018] 2 HKLRD 249, the Court of Appeal set out the applicable principles as follows:

(1)  If a litigant in person, who is gainfully employed, needs to do the work in relation to the litigation during his working hours, the maximum costs allowed is two-thirds of the sum which would have been allowed to a solicitor for doing that work.

(2)  If the litigant in person has no job or could handle the work in relation to the litigation in his spare time. He has not suffered any actual pecuniary loss and hence shall not be awarded costs under the indemnity principle of the common law. However, pursuant to O 62 r 28A(3). He may be allowed costs of not more than $200 per hour. The number of hours allowed in O 62 r 28A(2) is the time a solicitor would have spent on that item, not the time the litigant in person has actually taken.

(3)  If the litigant in person has no job but claims to have suffered pecuniary loss, he will need to prove his claim by an affirmation, which would include providing proof of his academic qualifications, working experience, loss of income etc.

36.SL based on the Standard Rates of Fees Approved by the Official Receiver in consultation with the Hong Kong Institute of Certified Public Accountants in 2012 (the “Standard Rates”) to claim $6,124 per hour for himself and NK. The Standard Rates are meant to be charging rates for liquidators doing liquidation works. SL and NK as professional accountants may charge $6,124 per hour to act as liquidators of a company. In conducting court proceedings, they are not conducting liquidation business and thus may not charge their fees at the usual rates payable for their professional liquidation works. However, I accept that as professional accountants and liquidators, they would be able to earn $6,124 per hour during their normal working hours but for engaging in these court proceedings. I am satisfied that SL and NK had suffered pecuniary loss to the extent of $6,124 per hour in handling these court proceedings to deal with the Summons, the Amended Summons and the Leave Summons.

37.SL was the liquidator of the 1^st respondent. He dealt with these court proceedings as liquidator of the 1^st respondent. The 1^st respondent would be liable to pay SL his professional fees for providing his service to the 1^st respondent. Whether the 1^st respondent has the ability to pay or whether the 1^st respondent may fully recover such fees from the Paying Party is neither here nor there.

38.Mr Chu for Mr Tang contended that:

“It is not disputable that remuneration of these Liquidators shall be subject to the taxation regime under HCCW 299/2016 instead. The said Order for their appointment did not provide express terms of entitlement of the Liquidators’ fees or remuneration, except there will be a Committee of Inspection (“COI”)” to be formed to oversee the entire winding up. No COI was formed and there was never any resolution to approve their fees as required under Cap. 32.” (§9 of the skeleton submission of the Applicant in reviewing R1’s costs (the “Review Submission”))

39.Mr Chu’s aforesaid contention is misconceived. He has confused the liquidator’s remuneration in liquidation with costs of a party to litigation. In the Taxation and the Review Hearing, we are not dealing with the remuneration of the 1^st respondent’s liquidators. We are concerning with the amount of costs which the Paying Party is liable to pay to the Receiving Party pursuant to the Costs Order. SL had dealt with these court proceedings for the 1^st respondent, he was entitled to charge 1^st respondent for the works done. Whether SL’s such fees will be allowed as remuneration of liquidator under the statutory insolvency regime has no relevancy to the obligations of the Paying Party under the Costs Order.

40.Order 62 rule 28A(6) of the RHC provides that a litigant in person includes a company. As such, under order 62 rule 28A(1) of the RHC, on a taxation of the 1^st respondent’s costs, the court may allow such costs as would have been allowed if the works and disbursements concerned had been done or made by a solicitor on the 1^st respondent’s behalf.

41.Mr Chu further contended that: “for the substantive matter before Wong DJHC, under the Amended Summons dealt with R2 to R4’s case, nothing concerning R1.” (§8 of the Review Submission)

42.The 1^st respondent was named as one of the respondents in the Amended Summons. Para 1 of the Amended Summons referred to: “Each of the Respondents”. Paras 2 and 3 of the Amended Summons referred to: “any of the Respondents”. Para 6 of the Amended Summons sought: “Penal notice be endorsed to the Order to be made”. The Amended Summons expressly sought remedies against the 1^st respondent with consequences of contempt. In such circumstances, I do not see how Mr Tang may now contend that the 1^st respondent was not the target of the application by the Amended Summons. If Mr Tang’s case was that the Amended Summons did not concern the 1^st respondent, why would the applicant take out the Leave Summons. This contention of Mr Tang is wholly without merits.

43.Furthermore, it was wholly devoid of merits to contend that the Leave Summons did not concern the 1^st respondent as it was an application for leave to proceed against the 1^st respondent.

44.In the application by the Amended Summons, the applicant alleged that the 1^st respondent had breached the 2016 Order. The applicant further alleged that SL had failed to discharge his duties as liquidator of the 1^st respondent. These were very serious accusations. Officers of the 1^st respondent, including its liquidators, could be liable for contempt. It would not be unreasonable for the 1^st respondent to engage an experienced solicitor charging at $6,000 per hour to handle this matter. According to order 62 rule 28A(2) of the RHC, I shall only allow not more than two-thirds of the hourly rate of a solicitor which I would have allowed if the 1^st respondent had been represented by a solicitor. I bear in mind that this is a taxation on indemnity basis and allowed $4,000 per hour to SL and NK in the Taxation Hearing. However, for section B of the Bill which was taxed on party-and-party basis, I allowed their hourly rates at $3,600 unless otherwise specified. I was of the view that such hourly rates were appropriate in the circumstances of this case.

45.I maintain my aforesaid rulings made at the Taxation and disallow review relying on Ground 1.

Ground 2

46.In the Review Application, Mr Tang contended that the 1^st respondent acted in person and SL had the burden of proof for his pecuniary loss by affidavit evidence. In the Cheuk Shu Yin (No 2) case (supra), the Court of Appeal stated that if the litigant in person had no job but claimed to have suffered pecuniary loss, he would need to prove his claim by an affirmation. However, this is not the case before me. SL is a professional accountant and liquidator engaging full time in his professional works. Pursuant to the Standard Rates, he may charge $6,124 per hour for his professional works. I am satisfied that by engaging himself to deal with these court proceedings, SL lost the opportunity to earn professional fees at the rate of $6,124 per hour and thus suffered pecuniary loss. No affirmation on his pecuniary loss will be called for in the circumstances of this case.

47.I have in Ground 1 above dealt with the hourly rate allowed for SL and do not propose to repeat myself here. Suffice it to say that I do not see any merits in Mr Tang’s review relying on Ground 2 and shall disallow review on this ground.

Ground 3

48.This ground will be considered when I come to individual Review Item below.

Ground 4

49.In respect of this ground, Mr Tang contended in the Review Application that: “No leave was obtained from the Court under s 182 and s 199 of [the Ordinance]”. (§9(4) of Annex 1 of the Review Application)

50.Section 182 of the Ordinance is about avoidance of dispositions of property, etc after commencement of winding up. I do not see how section 182 is relevant to this Taxation. In §4 of Annex 1 of the Review Application, Mr Tang referred to sections 186 and 199 of the Ordinance. Mr Tang might have mixed up section 186 with section 182.

51.Section 186 of the Ordinance provides that:

“When a winding up order has been made or a provisional liquidator has been appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the court, and subject to such terms as the court may impose.”

52.In referring to section 186 of the Ordinance, Mr Tang contended that:

“The Leave Summons under s.186 CWUMP was dismissed, by Wong DJHC in 2019. So R1 is not, and technically never has been, a party to the s29 Amended Summons. Its participation in the s29 Amended Summons thus was limited to locus standi to be sued. Due to A [ie the applicant] failed to pass the Leave Summons hurdle, R1 did not need to deal with the substantive part of the s29 Summons.” (§7 of the Review Submission)

53.In advancing the aforesaid contention, Mr Tang seemed to have forgotten the fact that the Amended Summons and the Leave Summons were substantially disposed of by the learned Deputy Judge at the same hearing. By the time the Leave Summons was dismissed, all costs incurred by the 1^st respondent for the Amended Summons had already been incurred.

54.After dismissing the Leave Summons, the learned Deputy Judge, in the Judgment dated 6 June 2019, not only awarded the costs of the Leave Summons, but also the costs of the Amended Summons, to the 1^st respondent. The learned Deputy Judge not only awarded costs to the 1^st respondent for both summonses but costs on indemnity basis. The Paying Party had applied to vary the Costs Order without success when the learned Deputy Judge affirmed the Costs Order on 2 July 2019.

55.If Mr Tang contended that the learned Deputy Judge should not have awarded costs for the Amended Summons in favour of the 1^st respondent, the only venue was for the Paying Party to take the matter to the Court of Appeal which the Paying Party had done. However, the Appeal was dismissed, again with costs on indemnity basis in favour of the 1^st respondent. It is not opened to the Paying Party to have the second bite or third bite of cherry. In fact, I have no jurisdiction to overturn the Costs Order. (See Cope v United Dairies (London) Limited [1963] 2 QB 33)

56.Mr Tang further contended that the liquidators of the 1^st respondent had failed to obtain sanction under section 199 of the Ordinance to defend the Amended Summons and the Leave Summons until 19 September 2022 when retrospective sanction under section 199 was granted by the court to the liquidators of the 1^st respondent.

57.In re A Debtor (No 26A of 1975) [1985] 1 WLR 6, it was held that the purpose of similar provision in the English Bankruptcy Act 1914 requiring the trustee-in-bankruptcy to obtain sanction of the committee of inspection to defend any legal proceedings was to protect the bankrupt’s estate. Scott J stated that: “The purpose of the section is not, however, to protect third parties and the absence of any requisite sanction does not confer a defence on third parties.” ([1985] 1 WLR 6 at 10)

58.The same equally apply to sanction required under section 199 of the Ordinance. If a solicitor had been engaged for the 1^st respondent, the lack of section 199 sanction would not prevent the recovery of fees by the solicitor for providing services to the 1^st respondent. I am of the view that without such sanction, SL might not recover his fees as liquidator for liquidation works but he should still be able to recover fees for his services rendered to the 1^st respondent as litigant in person in the legal proceedings. In any event, this is only of academic interest for this case as retrospective sanction under section 199 of the Ordinance had been granted to the liquidators of the 1^st respondent on 19 September 2022 to defend the Amended Summons and the Leave Summons, any irregularities would have been rectified. (See In re A Debtor (supra))

59.If Mr Tang’s contention is that the learned Deputy Judge should not have awarded costs of the Amended Summons and the Leave Summons to the 1^st respondent because of lack of section 199 sanction at the material times, my aforesaid observations on his contention relying on section 186 of the Ordinance equally apply.

60.In the premise, I disallow review relying on Ground 4.

Review Items

61.Mr Tang was acting in person for the review on quantum of each Review Item and the Receiving Party was represented by Mr Wong of law costs draftsman.

62.In the Review Application, Mr Tang sought to review my rulings on 43 items made at the Taxation. As I have disallowed review relying on Grounds 1, 2 and 4 above, I shall only consider below the Review Items under Ground 3, ie whether the times charged were excessive or for irrelevant works. For items in section A of the Bill, this has to be considered in the context of a taxation on indemnity basis, ie whether the costs claimed were of an unreasonable amount or had been unreasonably incurred and any doubts as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the Receiving Party. (Order 62 rule 28(4A) of the RHC)

63.In this determination, item numbers refer to item numbers as stated in the Bill. Item numbers not specifically referred to as items in section B of the Bill are items in section A of the Bill.

Item 1

64.Item 1 was time claimed by SL for considering the 2016 Order. SL claimed 20 minutes. At the Taxation, I allowed this item in full. Mr Tang proposed to allow 5 minutes in the Review Application.

65.The 2016 Order was the order which the applicant contended that the 1^st respondent had breached. In order to deal with these court proceedings, it was not unreasonable for SL to spend time to consider the 2016 Order. SL spent 20 minutes in doing so was also not unreasonable.

66.I maintain my ruling made at the Taxation and disallow review of this item.

Item 2

67.In this item, SL claimed 25 minutes in considering the court decision leading to the 2016 Order. I allowed this item in full at the Taxation. Mr Tang proposed to allow 5 minutes in the Review Application.

68.For same reasons stated above for item 1, I maintain my previous ruling made at the Taxation.

Item 3

69.In this item, SL claimed 25 minutes in considering the Summons. I allowed 20 minutes of SL’s time at the Taxation. Mr Tang proposed to allow 6 minutes in the Review Application.

70.The 1^st respondent was named as one of the respondents in the Summons and the same was served to the 1^st respondent. SL of course would have to consider the Summons carefully. I agreed that a solicitor charging $6,000 per hour would not need to spend 25 minutes in considering the Summons. I was of the view that for such solicitor to spend 20 minutes in considering the Summons was not unreasonable. I allowed 20 minutes at the Taxation for this item. I maintain my aforesaid ruling.

Item 4

71.In this item, SL claimed 15 minutes in considering the Amended Summons. I allowed 10 minutes of SL’s time at the Taxation. Mr Tang proposed to allow 3 minutes in the Review Application.

72.The Amended Summons set out the latest application which the 1^st respondent had to deal with. It was of course not unreasonable for SL to spend time to consider it. However, in view of the Amended Summons was only the amended version of the Summons and the amendments had been marked up, I was of the view that it was unreasonable for a solicitor charging $6,000 per hour to spend 15 minutes in considering the same. As such, I allowed 10 minutes to SL at the Taxation which I considered not unreasonable.

73.I maintain my previous ruling on this item made at the Taxation.

Item 11

74.In this item, SL claimed 3 hours 20 minutes in considering the 1^st affirmation of Mr Tang filed in 2015 in the application for the 2016 Order. I allowed 3 hours of SL’s time at the Taxation. Mr Tang proposed to allow 3 minutes in the Review Application.

75.This affirmation (together with exhibits) consisted more than 90 pages. When this affirmation was previously served in 2015, SL was not yet in the picture as the 1^st respondent was not wound up until 2 November 2016. Furthermore, Mr Tang had referred to this affirmation in his affirmation supporting the application by the Summons / Amended Summons (ie the 3^rd affirmation of Mr Tang which was item 15 below). I was of the view that in the circumstances of this case it was not unreasonable for SL to spend time to consider this affirmation and for him to spend 3 hours in considering this affirmation in order to understand the application by the Summons / Amended Summons in context was not unreasonable.

76.I maintain my previous ruling on this item made at the Taxation.

Item 12

77.In this item, SL claimed 3 hours 40 minutes in considering the 1^st affirmation of the 2^nd respondent filed in 2015 in relation to the application for the 2016 Order. I allowed 1 hour 40 minutes to SL for this item at the Taxation. Mr Tang contended in the Review Application that this item was irrelevant and should be taxed off.

78.This affirmation was filed in opposition to the application for the 2016 Order. It was of course relevant to SL’s handling of the application by the Summons / Amended Summons. Although the affirmation itself did not have exhibits, it did refer to other documents previously filed with the court. I agreed that it was unreasonable for SL to spend 3 hours 40 minutes to consider this 7-page affirmation. However, SL had to consider this affirmation in some details to understand what had happened back in 2015 between the parties. He had to refer back to those documents referred to in this affirmation to understand the same. It was not unreasonable for him to spend 1 hour 40 minutes to consider this document.

79.I maintain my previous ruling on this item made at the Taxation.

Item 13

80.In this item, SL claimed 3 hours in considering the 2^nd affirmation of the 2^nd respondent also filed in 2015. At the Taxation, I allowed this item in full. Mr Tang contended in the Review Application that this item was irrelevant and should be taxed off.

81.This affirmation was also filed in opposition to the application for the 2016 Order. It was of course relevant to SL’s handling of the application by the Summons / Amended Summons.

82.This affirmation (together with exhibits) consisted more than 190 pages. I was of the view that it was not unreasonable for SL to spend 3 hours in considering this affirmation. I maintain my previous ruling on this item made at the Taxation.

Item 14

83.In this item, SL claimed 2 hours 30 minutes in considering the 2^nd affirmation of Mr Tang also filed in 2015 for the 2016 Order. I allowed 2 hours to SL at the Taxation. Mr Tang contended in the Review Application that this item was irrelevant and should be taxed off.

84.This affirmation was also filed in support of the application for the 2016 Order. It was of course relevant to SL’s handling of the application by the Summons / Amended Summons.

85.This affirmation (together with exhibits) consisted more than 80 pages. I was of the view that it was not unreasonable for SL to spend 2 hours in considering this affirmation. I maintain my previous ruling on this item made at the Taxation.

Item 15

86.In this item, SL claimed 4 hours 30 minutes in considering the 3^rd affirmation of Mr Tang filed in support of the application by the Summons. I allowed SL’s time in full at the Taxation. In the Review Application, Mr Tang proposed to allow 1 hour 30 minutes.

87.This affirmation was filed in support of the application by the Summons against, inter alia, the 1^st respondent. SL of course had to consider this affirmation in details.

88.This affirmation (together with exhibits) consisted more than 230 pages. I was of the view that it was not unreasonable for SL to spend 4 hours 30 minutes in considering this affirmation. I maintain my previous ruling on this item made at the Taxation.

Item 16

89.In this item, SL claimed 10 hours in drafting his 1^st affirmation in opposition to the application by the Summons. I allowed this item in full at the Taxation. In the Review Application, Mr Tang proposed to allow 2 hours 30 minutes.

90.This affirmation was filed by SL in opposition to the application by the Summons. SL had to set out the 1^st respondent’s case in details and to consider what documents had to be produced to assist the court to deal with the matters. He had to do all these without assistance of counsel.

91.The affirmation consisted of 12 pages with more than 50 pages of exhibits. I was of the view that it was not unreasonable for SL to spend 10 hours to draft and finalize this affirmation. I maintain my previous ruling on this item made at the Taxation.

Item 17

92.In this item, SL claimed 3 hours 20 minutes in considering the 3^rd affirmation of the 2^nd respondent in opposition to the Amended Summons. I allowed 2 hours of SL’s time claimed. In the Review Application, Mr Tang proposed to allow 1 hour.

93.This was the affirmation by a co-respondent to oppose the Amended Summons. The affirmation consisted of 19 pages with more than 130 pages of exhibits. Although some exhibits might have been considered by SL on other previous occasions in different context, SL had to re-consider them again in the context of this affirmation. This affirmation also referred to SL’s 1^st affirmation which was item 16 above. SL of course had to consider the case of other co-respondents and see if their stance would have any implications on the 1^st respondent’s position. He had to consider this affirmation in some details.

94.It was not unreasonable for SL to consider this affirmation in the circumstances of this case. Although I was of the view that for SL to spend 3 hours 20 minutes to consider this affirmation was unreasonable, it was not unreasonable for him to spend 2 hours in considering the same. I maintain my previous ruling on this item made at the Taxation.

Item 18

95.In this item, SL claimed 3 hours 45 minutes in considering the 5^th affirmation of Mr Tang. I allowed 3 hours of SL’s time at the Taxation. In the Review Application, Mr Tang proposed to allow 40 minutes.

96.This was Mr Tang’s further affirmation in support of the application by the Amended Summons. As stated in §2 of this affirmation, it was filed in reply to the 3^rd affirmation of the 2^nd respondent. However, Mr Tang also stated in §2 of this affirmation that he would refer to SL’s 1^st affirmation. In such case, it was not unreasonable for SL to consider this affirmation in some details. This affirmation consisted of 20 pages and referred to 28 pages of exhibits. Although I was of the view that it was unreasonable for SL to spend 3 hours 45 minutes to consider this affirmation, it was not unreasonable for SL to spend 3 hours to consider the same in the circumstances of this case. I maintain my previous ruling on this item made at the Taxation.

Item 25.1

97.In this item, SL claimed 2 hours 30 minutes in considering Mr Tang’s skeleton for the hearing of 27 May 2019 before the Deputy Judge. I allowed SL’s time in full at the Taxation. In the Review Application, Mr Tang proposed to allow 1 hour.

98.This was Mr Tang’s skeleton for the hearing for the application by the Amended Summons and the Leave Summons. It was of course not unreasonable for SL to spend time to consider the same. To deal with the same at the hearing, SL had to consider Mr Tang’s skeleton carefully. Mr Tang’s skeleton consisted of 25 pages. It was not unreasonable for SL to spend 2 hours 30 minutes in considering the same. I maintain my previous ruling on this item made at the Taxation.

Item 25.2

99.In this item, SL claimed 35 minutes in considering authorities submitted by Mr Tang in support of the application by the Amended Summons. I allowed SL’s time in full at the Taxation. In the Review Application, Mr Tang proposed to allow 15 minutes.

100.Mr Tang referred to two authorities consisting of 23 pages on legal principles in support of the application by the Amended Summons. Relying on such authorities, Mr Tang contended in §45 of his skeleton that: “Applicant submits that this Honourable Court can safely conclude that there has been wholesale non-compliance of the S29 Order by the Respondents.” (Emphasis added)

101.As the 1^st respondent was named one of the respondents in the Amended Summons, it was of course not unreasonable for SL to spend time to consider these authorities. SL had to attend the hearing before the Deputy Judge on behalf of the 1^st respondent without assistance of counsel. I was of the view that for SL to spend 35 minutes to consider the legal authorities relied on by the applicant was not unreasonable. I maintain my previous ruling on this item made at the Taxation.

Item 25.3

102.In this item, SL claimed 1 hour 30 minutes for considering Mr Tang’s supplemental skeleton. I allowed this item in full at the Taxation. In the Review Application, Mr Tang proposed to allow 30 minutes.

103.This was Mr Tang’s submissions in response to the submissions of the respondents (including that of the 1^st respondent). It could not be unreasonable for SL to spend time to consider the same. This supplemental submissions consisted of 11 pages. As it was also responding to the 1^st respondent’s submissions, SL had to consider the document in some details. It was not unreasonable for SL to spent 1 hour 30 minutes in considering this document in the circumstances of this case. I maintain my previous ruling on this item made at the Taxation.

Item 25.4

104.In this item, SL claimed 2 hours 30 minutes in considering Mr Tang’s additional authorities. I allowed SL’s time in full at the Taxation. In the Review Application, Mr Tang proposed to allow 1 hour.

105.Mr Tang referred to another six authorities consisted of more than 120 pages in his supplement skeleton. It was not unreasonable for SL to spend time to consider the same. In view of the number of authorities referred to and their lengths, it was not unreasonable for SL to spend 2 hours 30 minutes to consider the same. I maintain my previous ruling on this item made at the Taxation.

Item 25.5

106.In this item, SL claimed 10 hours in drafting the 1^st respondent’s skeleton. I allowed this item in full at the Taxation. In the Review Application, Mr Tang proposed to allow 3 hours.

107.The 1^st respondent was named a respondent to the Amended Summons. To state the case of the 1^st respondent to the court, it was of course not unreasonable for SL to prepare a skeleton for the 1^st respondent. The 1^st respondent’s skeleton consisted of 15 pages. It was prepared by SL without assistance of counsel. It was not unreasonable, in the circumstances of this case, for SL to spend 10 hours in drafting and finalizing the 1^st respondent’s skeleton. I maintain my previous ruling on this item made at the Taxation.

Item 25.6

108.In this item, SL claimed 3 hours in preparing the list of authorities of the 1^st respondent. I allowed this item in full at the Taxation. In the Review Application, Mr Tang proposed to allow 45 minutes.

109.To support the stance of the 1^st respondent at the hearing, it was not unreasonable for SL to refer to legal authorities. To prepare legal authorities to support the 1^st respondent, SL had to consider various legal authorities in the area to find the appropriate authorities. He also needed to consider how the relevant authorities might assist the case of the 1^st respondent. This was an intelligent exercise. SL spent 3 hours and identified two legal authorities. I was of the view that the time incurred was not unreasonable. I maintain my previous ruling on this item made at the Taxation.

Items 25.7 and 25.8

110.In these items, SL claimed altogether 5 hours in considering the skeleton and list of authorities of the 2^nd to 4^th respondents. At the Taxation, I allowed 3 hours to SL in total for these two items. In the Review Application, Mr Tang proposed to allow 2 hours in total.

111.The 2^nd to 4^th respondents were legally represented in these proceedings. They were represented by senior counsel leading two junior counsel at the hearing. Counsel lodged a 20-page skeleton referring to 8 authorities consisting of 110 pages for the 2^nd to 4^th respondents.

112.It was not unreasonable for SL to spend time to consider the skeleton of the co-respondents to see if it could be of assistance to the 1^st respondent’s case especially when the skeleton was prepared by senior counsel whereas SL was not assisted by counsel in preparing the 1^st respondent’s skeleton.

113.SL would also have to see if the co-respondents’ submissions would have any impacts or implications on the case of the 1^st respondent.

114.I was of the view that it was not unreasonable for SL to spend 3 hours in considering these documents. I maintain my previous rulings on these items made at the Taxation.

Item 25.9

115.In this item, SL claimed 45 minutes in preparing for the hearing. I allow 30 minutes of SL’s time at the Taxation. In the Review Application, Mr Tang proposed to allow 10 minutes.

116.The 1^st respondent was not legally represented at the hearing. SL had to attend the hearing by himself. Of course, he had to prepare for the hearing. SL was the case handler and had prepared the 1^st respondent’s skeleton submissions for the hearing. He had also spent time in considering other parties’ skeleton submissions. I was of the view that it was unreasonable for SL to spend another 45 minutes in preparing for the hearing. However, I was of the view that it was not unreasonable for SL to spend 30 minutes in preparing for the hearing.

117.I maintain my previous ruling on this item made at the Taxation.

Item 29

118.In the Bill, SL claimed 16 hours under this item for writing 20 letters to the applicant and considering 30 letters received from the applicant. At the Taxation, I allowed 13 hours and 4 minutes of SL’s time. In the Review Application, Mr Tang proposed to allow 2 hours 29 minutes to SL and add 9 minutes for a trainee solicitor.

119.In the LOO, Mr Tang stated that he had identified only 29 letters written to the 1^st respondent and was unable to locate the letter (in) dated 23 January 2019. In the taxation bundles and the schedule of communications submitted to the court at the Taxation, the Receiving Party produced 33 letters (in) and 22 letters (out) for this item. In the schedule of communications, the Receiving Party claimed that SL had spent altogether 964 minutes (ie 16 hours 4 minutes) on these correspondences. However, the Receiving Party only claimed 16 hours in the Bill.

120.Some of these letters were letters sent by the applicant to other co-respondents or the court and copied to the 1^st respondent. These letters were not addressed to the 1^st respondent but they were copied to the 1^st respondent in the course of the court proceedings. It was not unreasonable for SL to spend time to read these letters to see if they were of any concerns to the 1^st respondent.

121.The Receiving Party had produced the letters concerned to the court at the Taxation. They consisted of over 120 pages.

122.In the LOO, Mr Tang rightly pointed out that 3 of the letters (out) (ie letters dated 10, 17 and 21 January 2019) and 2 of the letters (in) (ie letter dated 14 and 19 February 2019) were related to applications ended up with no order as to costs.

123.In fact, the letter (in) dated 23 January 2019, which Mr Tang was unable to locate, was related to amending the order dated 16 November 2018. It was a fax sent by Mr Tang’s firm (ShineWing Specialist Advisory Services Ltd) to SL attaching the signed consent summons dated 22 January 2019 in which the parties agreed to the costs order of: “there be no order as to costs of this application”.

124.The Receiving Party claimed 33 minutes in total in respect of these letters.

125.Mr Tang further pointed out in the LOO that 2 of the letters (out) (ie letters dated 29 and 30 January 2019) and 3 of the letters (in) (ie letters dated 28 and 30 January 2019 and 25 February 2019) were related to applications for which costs had already been assessed by summary assessment and paid. The Receiving Party claimed 19 minutes in total in respect of these letters.

126.Mr Tang contended that for the aforesaid letters, the Receiving Party was not entitled to claim costs against the Paying Party in the Taxation. I agreed and had borne that in mind in taxing this item at the Taxation. As such, a total of 52 minutes were deducted from the 964 minutes claimed in the schedule of communications leaving the Receiving Party’s claim for this item at 912 minutes (ie 15 hours 12 minutes).

127.Mr Tang contended that 3 of the letters (out) and 5 of the letters (in) were covering letters for serving documents. In the LOO, Mr Tang proposed 3 minutes for each of such letters (out) and 1 minute for each of such letters (in). I agreed that the time incurred to deal with these covering letters should not be substantial and I bore this in mind when I taxed this item at the Taxation.

128.Some letters claimed under this item (ie 6 letters (in) and 6 letters (out)) were dated prior to 12 October 2018, ie the date of the Summons. Mr Tang contended that costs incurred in relation to these letters should not be allowed. Just like letters before action, if these letters had sufficient connection with the subsequent proceedings, the costs incurred would be allowed even in a party-and-party taxation. In a taxation on indemnity basis, if it was not unreasonable for SL to write or consider the letters concerned for the purpose relating to the subsequent application by the Summons / Amended Summons or the Leave Summons, such costs would be recoverable. According to order 62 rule 28(4A) of the RHC, if there is any doubt as to whether the costs were reasonably incurred, the issue shall be resolved in favour of the receiving party.

129.The pre-Summons letters (in) claimed in this item were letters dated 9 and 19 April 2018, 21 May 2018, and 5, 14 and 27 June 2018. The pre-Summons letters (out) claimed were letters dated 6 and 13 April 2018, 25 May 2018, 5 and 14 June 2018 and 3 July 2018.

130.These pre-Summons letters were on provision of documents and information requested by the applicant within the six months prior to the issuance of the Summons. The applicant was dissatisfied with these disclosures leading to the issuance of the Summons.

131.In the letter dated 9 April 2018 sent by Mr Tang to SL, Mr Tang stated that: “I draw your attention to my powers as Trustees under section 29 of the Bankruptcy Ordinance (Cap 6). In the event that application is required to be made to the Court, I shall ask costs to be borne by you personally.” Mr Tang did subsequently take out the application by the Summons / Amended Summons.

132.In his letter dated 5 June 2018 sent to SL, Mr Tang stated that: “Your repeated reference to me as a mere “individual creditor” is meaningless as, in the next breath, you noted that the Company and its directors are subject to a S29 Order in HCCB 4475/2002 [ie the 2016 Order]. As such, it is my view that, as the Company’s liquidator, you are also subject to the obligations of the Company under that Order.”

133.I was of the view that these correspondences were sufficiently related to matters, subject of the application by the Summons / Amended Summons, entitling the Receiving Party to claim under the Costs Order for its costs incurred. I maintain such view.

134.Some of these letters were lengthy with enclosures. Mr Tang sent a letter to the 1^st respondent dated 14 June 2018 copying to the 1^st respondent his letter of even date sent to other co-respondents which letter consisted of 3 pages but enclosing 14 pages of documents. In the said letter to the 1^st respondent, Mr Tang required SL to report in the next 7 days to Mr Tang, as trustee-in-bankruptcy of a contributory and creditor of the 1^st respondent, what action, if any, SL proposed to take to investigate / report the matters which he had raised with the other co-respondents, who were directors of the 1^st respondent. The same matters were subject matters of the Summons / Amended Summons.

135.In his letter dated 27 June 2018 sent to SL, Mr Tang stated that:

“There is prima facie evidence that the directors and Cheung [ie the 2^nd respondent] in particular have falsified the books and records of Assen and produced audited accounts which differ from the management accounts (as well as other documents they had produced, including affirmations filed under oath) in order for them to support their allegation that Assen is worthless. It is my strong view that you, as liquidator, are duty-bound to perform all requisite investigations and report your findings to the Official Receiver’s Office and/or other authorities as appropriate / as required.

My rights, including those of filing a complaint against you with the ORO (and others) are expressly reserved.”

136.In a letter dated 12 October 2018 sent by Mr Tang to the Official Receiver and copied to the 1^st respondent, Mr Tang referred to the Summons and his 3^rd affirmation in support of the application by the Summons (ie item 15 above) and requested the Official Receiver: “In your capacity as regulator for the insolvency regime in Hong Kong, please consider what, if any, action you might wish to take with regard to the Liquidators [ie SL] and / or director of Assen [ie the 2^nd to 4^th respondents] in the context of their statutory and / or contractual obligation or otherwise.”

137.In view of the serious allegations contained in the aforesaid letters, SL no doubt would have to consider matters raised therein in more details.

138.It could not be unreasonable for SL to consider these letters sent or copied to the 1^st respondent by the applicant in relation to these proceedings. I had borne in mind the points raised by Mr Tang in the LOO as aforesaid and considered all the letters concerned at the Taxation. I was of the view that it was not unreasonable for SL to spend 784 minutes (ie 13 hours and 4 minutes) to write or consider these letters. I maintain my previous ruling on this item made at the Taxation.

Item 31

139.In this item, NK claimed 3 hours for preparing and attending inspection of documents by the applicant’s representative. At the Taxation, I allowed 10 minutes of NK’s time but added 2 hours 50 minutes for the time of a clerk at $1,100 per hour to attend the actual inspection. In the Review Application, Mr Tang proposed to tax off this item.

140.The inspection of the documents took place on 19 April 2018. The inspection was upon request of Mr Tang by his letter dated 9 April 2018 (ie one of the letters covered by item 29 above) (see §131 above). After the inspection, Mr Tang was still of the view that the 1^st respondent had not fully comply with the 2016 Order and took out the Summons in October 2018. This can be seen from exchanges between Mr Tang and SL subsequent to the inspection covered by item 29 above including Mr Tang’s letter dated 5 June 2018 referred to in §132 above. I was of the view that the inspection was sufficiently related to the application by the Summons / Amended Summons. The costs incurred were thus recoverable.

141.However, I was of the view that it was unreasonable for NK incurring costs at the level of a principal of an accountants firm to attend to oversee the inspection. The same should have been done by a clerk at the hourly rate of $1,100. As such, at the Taxation, I allowed 2 hours and 50 minutes (the actual time of inspection) for a clerk at the hourly rate of $1,100 and allowed 10 minutes to NK for preparing for the inspection.

142.I maintain my previous ruling on this item made at the Taxation.

Items 33

143.In this item, SL claimed 25 minutes for considering the 1^st draft of the hearing bundles indexes prepared by the applicant. I allowed this item in full at the Taxation. In the Review Application, Mr Tang proposed to tax off SL’s time and allowed 25 minutes to a trainee solicitor.

144.Hearing bundles indexes set out documents to be produced before the court at the hearing. SL had to ensure that all relevant documents for the hearing were included in the hearing bundles. It was not unreasonable for SL to spend time to check and approve the hearing bundles indexes. The time incurred by SL on this item was also not unreasonable.

145.I maintain my previous ruling on this item made at the Taxation.

Item 34

146.In this item, SL claimed 25 minutes for considering the 2^nd draft of the hearing bundles indexes prepared by the applicant. I allowed 15 minutes of SL’s time at the Taxation. In the Review Application, Mr Tang proposed to tax off SL’s time and to allow 10 minutes for a trainee solicitor.

147.As pointed out in item 33, SL, as the case handler for the 1^st respondent, had to ensure that the hearing bundles would include all required documents for the hearing. It was not unreasonable for him to attend to check the revised draft hearing bundles indexes. Since SL had previously checked the 1^st draft of the hearing bundles indexes, I allowed 15 minutes at the Taxation for him to check the revisions made in the 2^nd draft. I maintain my previous ruling on this item made at the Taxation.

Item 35

148.In this item, SL claimed 20 minutes in considering the 3^rd draft of the hearing bundles indexes. At the Taxation, I allowed 10 minutes of SL’s time. In the Review Application, Mr Tang proposed to tax off SL’s time and allowed 5 minutes to a trainee solicitor.

149.For reasons stated for items 33 and 34 above, I was of the view that it was not unreasonable for SL to check and approve the hearing bundles indexes. In view of this being the 3^rd draft, I allowed 10 minutes of SL’s time instead of 20 minutes claimed. I was of the view that it was not unreasonable for SL to spend such time in checking and approving the 3^rd draft of the hearing bundles indexes.

150.I maintain my previous ruling on this item made at the Taxation.

Item 36

151.In this item, SL claimed 15 minutes in considering the 4^th draft of the hearing bundles indexes. At the Taxation, I allowed 10 minutes of SL’s time. In the Review Application, Mr Tang proposed to tax off SL’s time and allowed 5 minutes to a trainee solicitor.

152.For reasons stated for items 33 to 35 above, I was of the view that it was not unreasonable for SL to check and approve the hearing bundles indexes. In view of this being the 4^th draft, I allowed 10 minutes of SL’s time instead of 15 minutes claimed. I was of the view that it was not unreasonable for SL to spend such time in checking and approving the 4^th draft of the hearing bundles indexes.

153.I maintain my previous ruling on this item made at the Taxation.

Item 37

154.In this item, SL claimed 6 hours 30 minutes in writing 6 letters to and considering 33 letters received from solicitors acting for the co-respondents. At the Taxation, I allowed 252 minutes (ie 4 hours 12 minutes) of SL’s time. In the Review Application, Mr Tang proposed to allow 1 hour 34 minutes.

155.The Receiving Party listed 36 letters (in) and 6 letters (out) in the schedule of communications claiming 398 minutes (ie 6 hours 38 minutes) for SL’s time. However, the Receiving Party only claimed 6 hours 30 minutes in the Bill. The Receiving Party had produced the letters concerned in the taxation bundles for my perusal at the Taxation.

156.Letters written by SL to the co-respondents’ solicitors were simple letters on routine matters relating to the proceedings. Most of the incoming letters were letters sent by the co-respondents’ solicitors to the applicant or to the court and copied to the 1^st respondent. Some of these letters were lengthy with substantial enclosures.

157.In the LOO, Mr Tang rightly pointed out that the letter (in) dated 21 January 2019 was related to matters on which no order as to costs was ordered. At the Taxation, the Receiving Party agreed to withdraw its claim for this letter. As such, the total time claimed was reduced to 388 minutes (ie 6 hours 28 minutes) in the schedule of communications which was less than the 6 hours 30 minutes claimed in the Bill.

158.Mr Tang stated in the LOO that he was unable to locate the letter (in) dated 18 February 2019. This was a letter sent by the solicitors for the 2^nd to 4^th respondent to the court (and copied to the 1^st respondent and the applicant) updating the court on the hearing bundles for the hearing scheduled for 20 February 2019. As no order as to costs was ordered in the order dated 20 February 2019, time claimed by the Paying Party for this letter (20 minutes) should be taxed off. This had further reduced the Receiving Party’s claim for this item to 6 hours 8 minutes.

159.In the LOO, Mr Tang stated that 5 letters (out) (dated 2 November 2018, 7 November 2018, 15 November 2018, 8 March 2019 and 23 May 2019) were not available to him. This was not surprising as communications between co-respondents might be covered by legal privilege and not available to the applicant. However, it is noted that there was no letter (out) dated 8 March 2019 included in the schedule of communications.

160.For letters dated prior to the issuance of the Summons on 12 October 2018, Mr Tang contended that they should be excluded and taxed off. Four letters claimed in this item (dated 21 March 2017, 22 March 2018, 25 June 2018 and 27 August 2018) were received prior to 12 October 2018. The Receiving Party claimed that SL had spent 102 minutes (ie 1 hour 42 minutes) in dealing with these letters.

161.As pointed out in item 29 above, the Receiving Party is entitled to recover under the Costs Order costs incurred on correspondences sufficiently related to matters, subject of the application by the Summons / Amended Summons.

162.The letter (in) dated 21 March 2017 was written by the co-respondents’ solicitors to the applicant more than 1.5 years before the issuance of the Summons setting out the factual background relating to disposal of a piece of land used to be owned by the 1^st respondent. It was written too long ago to be considered as related to the application by the Summons / Amended Summons. I taxed off the time claimed for this letter (45 minutes) reducing the Receiving Party’s claim for pre-Summons correspondence time to 57 minutes out of which I allowed 40 minutes at the Taxation.

163.The other three letters received prior to the issuance of the Summons were received within seven months before the issuance of the Summons and were letters sent to the applicant by the co-respondents’ solicitors in response to the applicant’s complaints for non-compliance of the 2016 Order by the co-respondents which was the subject matter for the Summons / Amended Summons. Although these letters were not addressed to the 1^st respondent, they had been copied to the 1^st respondent. It was not unreasonable for SL to spend time to consider these letters to know the development of the proceedings including previous communications between the parties on these matters which might have implications on the 1^st respondent’s position. Of course, SL only needed to consider the letters in more details when there were matters concerning the 1^st respondent. I was of the view that for SL to spend 40 minutes to consider these three letter was not unreasonable.

164.In the schedule of communications, the Receiving Party claimed 233 minutes for 31 post-Summons letters (in) (after withdrawing claim for the letter (in) dated 21 January 2019 as aforesaid). The Receiving Party also claimed 53 minutes of SL’s time in respect of 6 letters (out). I have considered each of these letters at the Taxation and allowed 184 minutes for SL’s time for handling the 31 post-Summons letters (in) and 28 minutes for the 6 letters (out).

165.I taxed off time claimed for letters related to applications in which costs had previously been agreed or no order as to costs had been ordered for the applications. I assessed the time claimed by SL on each of the other letters.

166.I allowed in total 252 (40 + 184 + 28) minutes (ie 4 hours 12 minutes) of SL’s time for this item. I was of the view that it was not unreasonable for SL to spend such time in considering or writing the letters concerned in the circumstances of this case. I maintain my previous ruling on this item made at the Taxation.

Item 41

167.In this item, SL claimed 30 minutes for considering three letters received from the 2^nd respondent. At the Taxation, I allow 10 minutes of SL’s time for this item. In the Review Application, Mr Tang proposed to tax off this item.

168.Mr Tang contended that the letters concerned were dated before the issuance of the Summons and thus irrelevant to these proceedings. One of the letters covered by this item was a letter dated 30 July 2018. This letter was on matters raised by the applicant with the 1^st respondent which led to the application by the Summons / Amended Summons. The letter was issued within three months before the issuance of the Summons and the content had sufficient connection with the matters for these proceedings. I was of the view that it was not unreasonable for SL to spend 10 minutes on this letter. I agreed that the other 2 letters were not sufficiently related to the application by the Summons / Amended Summons. Thus costs incurred to consider these 2 letters were not recoverable under the Costs Order.

169.I maintain my previous ruling on this item made at the Taxation.

Item 43

170.In this item, SL claimed 3 hours 30 minutes for reviewing the management accounts and vouchers of the 1^st respondent for the period from 1 April 2002 to 31 October 2016 (the “Period”). At the Taxation, I allowed this item in full. In the Review Application, Mr Tang proposed to tax off this item.

171.In the Amended Summons, the Applicant sought an order requiring each of the respondents (ie including the 1^st respondent) to answer on oath all the questions set out in Annex A of the 2016 Order and to produce all the documents set out in Annex B of the 2016 Order with reference to the summary exhibited as “ACWT-18” (the “Summary”) to the 3^rd affirmation of Mr Tang (ie subject matter of item 15 above). Both Annex A and Annex B of the 2016 Order and the Summary referred extensively to matters covered by the accounts of the 1^st respondent for the Period. The Summary was a 12-page table with 4 enclosures. All enclosures referred to the 1^st respondent’s accounts for the Period.

172.These accounts were produced by the 2^nd respondent to the Liquidators of the 1^st respondent back in May 2017. To deal with the application by the Summons / Amended Summons, it was not unreasonable for SL to review the accounts and vouchers of the 1^st respondent for the Period to consider the merits of the application by the Amended Summons. The time spent was not unreasonable in view of the fact that accounts for 15 years were being involved.

173.I maintain my previous ruling made in the Taxation for this item.

Item 44

174.In this item, SL claimed 3 hours in perusing documents of HCB 4475/2002 provided by the 2^nd respondent for the period from June 2016 to February 2018. At the Taxation, I allowed this item in full. In the Review Application, Mr Tang proposed to tax off this item.

175.The Receiving Party produced 24 documents covered by this item totalling more than 60 pages. These were documents covering exchanges between Mr Tang and solicitors acting for the respondents after granting of the 2016 Order on compliance of the 2016 Order. The centre issue for these proceedings was Mr Tang’s complaint of non-compliance of the 2016 Order. For SL to deal with the application by the Summons / Amended Summons, it was not unreasonable for him to peruse documents relating to previous performance of the 2016 Order. I was also of the view that the amount of time spent by SL on this item was not unreasonable.

176.I maintain my previous ruling on this item made at the Taxation.

Item 49

177.In this item, SL claimed 2 hours 30 minutes in conducting research on falsification of books and records. At the Taxation, I allowed this item in full. In the Review Application, Mr Tang proposed to tax off this item.

178.Mr Tang’s case was that the Liquidators of the 1^st respondent was required to investigate the alleged “falsification of books and records” of the 1^st respondent. In other words, Mr Tang was alleging that the Liquidators of the 1^st respondent had not properly discharged their duties to investigate into the alleged falsification of books and records of the 1^st respondent (see §135 above). In such circumstances, it was not unreasonable for SL to conduct legal research into this area to consider whether there was falsification of books and accounts of the 1^st respondent as alleged by Mr Tang. I was of the view that for SL to spend 2 hours 30 minutes to conduct such research was not unreasonable. As such, I maintain my previous ruling on this item made at the Taxation.

Item 50

179.In this item, SL claimed 2 hours for general care and conduct. At the Taxation, I allowed this item in full. In the Review Application, Mr Tang proposed to tax off this item.

180.Mr Tang contended that: “Unreasonable time spent on “general care and conduct”, with no details disclosed.”

181.Item 5 and note (b) to Item 5 of Part I of First Schedule of Order 62 of the RHC provides that the Registrar may allow such fee as he thinks proper in respect of the general care and conduct of the proceedings.

182.“Care and conduct” covers time spent by the supervising fee earner in supervising unqualified persons and junior fee earners in conducting the proceedings. Paragraph 62/App/23 of the Hong Kong Civil Procedure 2023 Vol 1 provides that:

“General care and conduct – In allowing the time for general care and conduct of the proceedings, the taxing master will have regard to, inter alia, the duration of the proceedings; the steps taken; and the number of unqualified persons or junior solicitors who required supervision.”

183.It was not unreasonable for SL to claim, as care and conduct, time spent to supervise his subordinate staff in handling these proceedings.

184.In this case, the Summons was issued on 12 October 2018. The proceedings for the Summons / Amended Summons concluded at the Court of First Instance in about July 2019 when the Costs Order was sealed. However, from correspondences produced for item 29 above, it can be seen that before issuance of the Summons, SL had since April 2018 already spent times to deal with the Applicant’s requests for information and documents, the subject matters of the Summons / Amended Summons. As such, SL had been dealing with the proceedings in respect of the Summons/Amended Summons and related matters for about 1.5 years. For SL to spend 2 hours to supervise works of other junior staff for such period of time was not unreasonable.

185.I maintain my previous ruling on this item made at the Taxation.

Section B item 1

186.In this item NK claimed 3 hours for reviewing files and drafting the Bill. I allowed 3 hours to NK at the Taxation but at the hourly rate of $1,800 (ie the usual hourly rate allowed for law costs draftsman (“LCD”) in taxation). In the Review Application, Mr Tang contended that only 2 hours at LCD rate should be allowed.

187.To prepare the Bill, NK had to review 8 files and to sort out the relevant correspondence. It was proper or necessary for her to spend 3 hours in so doing. As NK was doing works which should have been done by LCD, only LCD rate was allowed.

188.I see no merits in the Paying Party’s review application for this item and maintain my previous ruling on this item made at the Taxation.

Section B item 2

189.In this item, SL claimed 50 minutes in approving the Bill. I allowed this item in full at the Taxation. In the Review Application, Mr Tang proposed to tax off this item.

190.The Bill was prepared by NK. It was proper or necessary for SL being the handling fee earner to approve the Bill. The time claimed by SL in this item was proper or necessary. Of course, the hourly rate allowed to SL in this section B of the Bill will be hourly rate for party-and-party taxation which I had ruled at the Taxation was $3,600 per hour.

191.I see no merits in Mr Tang’s review application for this item and maintain my previous ruling on this item at the Taxation.

Section B items 3 to 10

192.At the Taxation, I had allowed the Receiving Party to insert the following times to the Bill:

3:    Considering List of Objections

1 hour 30 minutes to SL and 8 hours to LCD

4:    Communications with the Paying Party to try and agree on costs

1 hour 30 minutes to SL

5:    Perusing directions from taxing Master

5 minutes to SL

6:    Writing letter of appointment to court to fix date for taxation

5 minutes to SL

7:    Reviewing files and preparing taxation bundles

20 hours to LCD

8:    Attending court hearing for taxation

8 hours to LCD

9:    Checking calculations after taxation

3 hours to LCD

10:    Drafting allocator

30 minutes to LCD

193.All the above items were proper or necessary work items for taxation. I am of the view that the time which I had allowed at the Taxation for each item was proper or necessary for performing the work concerned. Mr Tang made no suggestion on quantum for these items in the LOO as well as in the Review Application.

194.I see no merits in Mr Tang’s review application for these items and maintain my previous rulings on these items made at the Taxation.

Costs and conclusion

195.For the reasons stated above, the Paying Party’s review application totally fails. Costs shall follow the event.

196.I make a costs order nisi that the Paying Party shall pay the Receiving Party’s costs for this review application. I shall assess such costs by summary assessment.

197.The aforesaid costs order nisi shall become absolute after 14 days from the date of this determination unless application is received from either party within these 14 days to vary the same.

198.To conclude, I dismiss the Paying Party’s review application. I also order the Paying Party to pay the Receiving Party’s costs for this review application with counsel certificate on nisi basis to be assessed by summary assessment.

199.I direct the Receiving Party to submit its statement of costs for this review application to the court within 7 days after the aforesaid costs order nisi shall become absolute with copy to the Paying Party.

200.I direct the Paying Party to submit his comment(s), if any, on the Receiving Party’s aforesaid statement of costs to the court within 7 days thereafter with copy to the Receiving Party.

201.The court shall assess the costs payable by the Paying Party to the Receiving Parties for this review application by summary assessment by way of paper disposal.

Certificate

202.I certify that review of all the Review Items failed for the reasons set out above.

Mr K Ng instructed by Johnnie Yam, Jackey Lee & Co, for the 1^st Respondent (the Receiving Party) in respect of the overall grounds of review.

Mr A Wong, law costs draftsman, instructed by Johnnie Yam, Jackey Lee & Co, for the Receiving Party in respect of review of quantum of individual items.

Mr G Chu instructed by K B Chau & Co, for the Applicant (the Paying Party) in respect of review of the overall grounds of review.

Mr Tang Chi Wah, the Applicant, acting and attending the hearing in person in respect of review of quantum of individual items,