Lau Kin Shun, Freeman As Administrator of Lau Wai Chau, Deceased and Others v. Philip Chan & Co (A Firm)

HCMP 593/2007

[2025] HKCFI 5288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDING NO 593 OF 2007

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BETWEEN

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D E C I S I O N

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I.  INTRODUCTION

1.This is a hearing of the Notice of Appeal filed on 12 August 2025 against the Order made by Master Hew on 29 July 2024. By that Order, Master Hew dismissed the 1^st Plaintiff’s application under Order 62 rule 17B to review §95(4) of Master M Wong’s Decision dated 19 December 2022 (the “Review Decision”) ([2022] HKCFI 3789) and §42(4) of Master M Wong’s Decision dated 16 October 2023 (the “Costs Decision”) ([2023] HKCFI 2673) that:-

“2… for the following Orders under O.62 r.17B:-

(a) Paragraph 95(4) of Decision of Master M Wong dated 19^th December 2022 [that is, the Review Decision] be set aside and that the whole of the 1^st fee agreement dated 29^th November 1994, the 2^nd fee agreement dated 7^th November 1995 and the 3^rd fee agreement dated 13^th July 2000 be certified as fair and reasonable and enforceable; and

(b) Paragraph 42(4) of the Decision of Master M Wong dated 16^th October 2023 [that is, the Costs Decision] be set aside or varied to the extent and effect that the 2^nd to 6^th Plaintiffs do bear their own costs, and the costs and interests awarded to R in aforesaid Decision dated 16^th October 2023 be paid by the 2^nd to 6^th Plaintiffs jointly and severally and first be paid out of the 2^nd to 6^th Plaintiffs’ shares and interests in the Estate of Lau Wai Chau, deceased and if insufficient be paid by the 2^nd to 6^th Plaintiffs personally, jointly and severally.”

2.The present Originating Summons is an application under section 67 of the Legal Practitioners Ordinance (Cap. 159) (the “LPO”) for an order to tax the legal fee payable by the 1^st Plaintiff, the administrator of the estate of Lau Wai Chau, deceased (the “Estate”) to Philip Chan & Co (a firm) (“PC”) (the Respondent herein). The 2^nd to 6^th Plaintiffs are some of the beneficiaries of the Estate. The dispute before me is limited to the dispute between the 1^st Plaintiff on the one hand and the 2^nd to 6^th Plaintiffs on the other hand mainly in relation to which side should be responsible for the costs of the Originating Summons. With leave to be excused, PC did not attend the hearing before me.

II.  BACKGROUND 

3.The present Originating Summons, as its case number suggests, has a history of almost two decades, but the background goes further back in time. For the present purpose, I do not need to set out the background in detail, but only the following in this Part.

4.In November 1994, the former administrator of the Estate (the “Former Administrator”), not the 1^st Plaintiff, and PC entered into a fee agreement dated 29 November 1994 (the “1^st Fee Agreement”) for application for estate duty clearance and letters of administration in relation to the Estate.

5.On 8 June 1995, letters of administration of the Estate were granted to the Former Administrator.

6.In November 1995, the Former Administrator and PC entered into another fee agreement dated 7 November 1995 (the “2^nd Fee Agreement”) for checking title of lots owned by the Estate, ascertaining particulars of the lots and instructing surveyors and other professionals to ascertain the sizes of the lands for distribution under a family settlement deed.

7.On 13 July 2000, the Former Administrator and PC entered into a third fee agreement (the “3^rd Fee Agreement”) agreeing how to work out the fees under the 1^st and 2^nd Fee Agreements.

8.On 13 August 2001, some of the beneficiaries of the Estate commenced HCAP 10 of 2001 against the Former Administrator and PC to challenge, among others, the reasonableness of the Fee Agreements and the fees payable by the Estate to PC. One of the defences raised by the Former Administrator and PC was that PC’s bills were subject to taxation and so any unreasonable parts of fees would be taxed off. Upon trial, Chung J dismissed the claim on 10 March 2006. The matter went on appeal, and on 21 March 2007, by consent, the appeal was stayed upon PC’s undertaking (“PC’s Undertaking”) to the Court and the parties:-

“to agree to taxation of the bills… PC shall not rely upon the mere existence of the 1^st & 2^nd Fee Agreements to contend that the fees… are reasonable or chargeable”.

9.On 6 March 2007, PC issued Bill No. 1 (“Bill 1”) and on 27 March 2007, PC issued Bill No. 2 (“Bill 2”) (collectively, the “Bills”).

10.On 27 March 2007, the Former Administrator commenced the present proceedings in respect of the Bills.

11.Following a hearing before Registrar Chan on 4 May 2007, on the same day, the Former Administrator’s solicitors, Chui & Lau (“C&L”), wrote to the beneficiaries stating that the 2^nd to 6^th Plaintiffs should be joined as parties so that the Court would know from them about the grounds objection to the bills as well as the agreements in question.

12.On 16 May 2007, Hau, Lau, Li & Yeung (“HLLY”), on behalf of the 2^nd to 6^th Plaintiffs, replied in writing:-

“2. In view of the remarks made by Mr Registrar Chan, our clients would have to participate as parties to HCMP No. 593 of 2007…

4. Our clients’ participation is meant to benefit the Estate because we will seek the lowest possible legal fees to be charged by Philip Chan & Co. As such, our clients would ask for their costs of participation in HCMP No. 593 of 2007 and the subsequent taxation to be borne by the Estate. Please let us know your client’s view about such demand.”

13.On 17 May 2007, C&L replied that the Former Administrator had no objection that the 2^nd – 6^th Plaintiffs would join the proceedings. As regards costs:-

“Regarding the question of legal costs incurred by HLLY on taxation to be borne out of the Estate, we take the view that it is inappropriate for the Executor to consent to such request unless all the beneficiaries agree thereto or there is a court order authorizing the Executor to do so. It remains to be seen whether the costs of Philip Chan & Co’s bills would be taxed down and if so, on what grounds. If Messrs. Philip Chan & Co is at fault, no doubt HLLY’s clients could ask for a Cost Order against Messrs. Philip Chan & Co because they are parties to the proceedings. On the other hand, if HLLY’s clients are at fault, there is no reason that the Estate should bear the legal costs unless the Estate is directed by the Court to do so.”

14.On 13 June 2007, HLLY wrote to the clerk to Registrar Chan, with C&L copied in, explaining why taxation of the Bills should be ordered. In respect of costs and whether the 2^nd to 6^th Plaintiffs would join the proceedings, HLLY wrote:-

“For the purpose of saving costs, because the Plaintiff has turned down our request for indemnifying [the 2^nd to 6^th Plaintiffs] in respect of the costs of participating in the captioned proceedings, we have decided to take the course of writing this letter instead to let the learned Registrar know our clients’ position…”

15.Also on 13 June 2007, C&L wrote to HLLY, noting that the 2^nd to 6^th Plaintiffs did not wish to be joined as to the proceedings and therefore asking the 2^nd to 6^th Plaintiffs to let HLLY have their objections to the Bills, which the Former Administrator would pass to the taxing master.

16.Eventually, on 18 July 2007, the 2^nd to 6^th Plaintiffs were joined to the proceedings.

17.Thereafter, the Former Administrator took no action for 4 years.

18.In September 2011, the 2^nd to 6^th Plaintiffs indicated that they would apply to have the taxation proceeded with and issued a Summons for directions for further conduct of the proceedings. The 2^nd to 6^th Plaintiffs issued such a Summons on 12 December 2011. In response, PC applied to strike out the 2^nd to 6^th Plaintiffs on the ground, inter alia, that they had no interest to take part in the taxation. On 15 February 2013, Anthony Chan J (as he then was) dismissed the striking out application, taking the view that the 2^nd to 6^th Plaintiffs had interest to take part in the taxation. On 13 September 2013, the Court of Appeal upheld Lordship’s decision in CACV 120 of 2013.

19.On 23 April 2013, at a hearing of PC’s application for interim payment before Master K Lo, Mr Chui of C&L said:-

“I’ll leave the good hands to the 2^nd and 6^thplaintiffs in the taxation. So may I ask Master to excuse the attendance of the 1^st plaintiff in [these] proceedings.”

20.As a result, Master K Lo granted leave to excuse the Former Administrator from attending future taxation hearings until further order of the Court.

21.Taxation hearing took place before Master M Wong from 13 to 19 May 2016 and 20 to 30 March 2017. During the interim period between 19 May 2016 and 20 March 2017, on 3 March 2017, PC sent two letters to the Former Administrator and the 2^nd to 6^th Plaintiffs making offers to settle. PC referred to them as sanctioned offers.

22.On 11 September 2020, Master M Wong handed down his decision on taxation (the “Taxation Decision”), in which he upheld the Bills.

23.On 25 September 2020, the 2^nd to 6^th Plaintiffs filed a Summons for review of the Taxation Decision under Order 62 rule 34.

24.On 2 November 2020, PC filed a Summons for an order that (1) the whole of the 1^st and 2^nd Fee Agreements shall be certified as fair and reasonable and (2) the 2^nd to 6^th Plaintiffs do pay PC all the costs of and incidental to the Originating Summons herein.

25.By his Review Decision handed down on 19 December 2022, Master M Wong dismissed the 2^nd to 6^th Plaintiff’s application for review, and PC’s application for an order certifying the reasonableness of the 1^st and 2^nd Fee Agreements. In giving the reasons for his refusal to certify the Fee Agreements, Master M Wong said at §91 of the Review Decision:-

“As to the certification of the 1^st and 2^nd Fee Agreements, I agree with P2-6s that there is no legal basis to make such an application. The case of In re Frape (No 1) [1893] 2 Ch 284 is not an authority suggesting that this court has jurisdiction to grant the certificate [PC] is seeking. In any event, the present proceedings are concerned with taxation of Bill No 1 and Bill No 2, not the 1^st and 2^nd Fee Agreements as such. It is not appropriate for this court to grant the certificate sought, and hence such an application must be refused.”

26.It must be noted that while the refusal to give certification was made in the Review Decision, this refusal was not a decision made upon refusal. It was made upon PC’s application for certification by Summons filed on 2 November 2020 mentioned above, though it was made at the same time in the Review Decision.

27.As regards PC’s application for costs to be paid by the 2^nd to 6^th Plaintiffs, Master M Wong reserved his decision pending further submissions from the parties, noting that “both sides may want to address [him] further”: see §92 of the Review Decision. In my view, the part concerning costs was not part of the review application, given that no costs order had been made and there was no costs order to review. The part concerning costs was part of the conduct of the taxation proceedings.

28.The 2^nd to 6^th Plaintiffs filed their written submissions on 20 January 2023. In the submissions, they sought an order that the costs be paid out of the Estate. The submissions apparently were not served on the 1^st Plaintiff. However, in around early June 2023, PC informed C&L that the 2^nd to 6^th Plaintiffs were seeking costs against the Estate.

29.About four months after PC informed C&L that the 2^nd to 6^th Plaintiffs were seeking costs against the Estate, on 16 October 2023, Master M Wong handed down the Costs Decision. In giving the reasons for his order that the costs be paid out of the Estate, Master M Wong said at §37 of the Costs Decision:-

“… I agree with P2-6s that they should not bear the costs personally as what they are pursuing in these taxation proceedings are for the benefit of the Estate as a whole. If they could succeed in having the costs taxed down, this would benefit the whole Estate. The fact that P1 as administrator did not take part in the proceedings does not mean that these proceedings are not for the benefit of the Estate. It is clear that P1 cannot take part in these proceedings because of conflict of interest, but P1 is a party to give the consent to have these taxation proceedings.” (emphasis added)

III.  NATURE OF THE PRESENT APPEAL – ORDER 62 RULE 17B

30.A hearing of an appeal against a Master’s decision is, of course, a de novo hearing. What is more pertinent here is what was the nature of the application before Master Hew, because the appeal now before me is an appeal against his 29 July 2024 Order.

31.As mentioned at the outset, the 29 July 2024 Order is an order of dismissal of the 1^st Plaintiff’s application under Order 62 rule 17B to review the Review Decision and the Costs Decision. Therefore, in the present de novo hearing, I am exercising the power under Order 62 rule 17B. It provides that:-

“If a party entitled to be heard on taxation fails to raise any objection to a bill of costs or to appear at a hearing set down under rule 21B(4) or 21C(1), a decision of a taxing master made against that party may be set aside or varied by the taxing master for good reasons and on such terms as he thinks fit.” (emphasis added)

32.In other words, it is a necessary condition, namely, “fail[ure] to raise any objection to a bill of costs” or “fail[ure]… to appear at a hearing set down under rule 21B(4) or 21C(1)”, to be satisfied before the power under this rule can be exercised to set aside or vary the decision in question.

33.The decision to be set aside or varied under this rule is the “decision of a taxing master made against that party” who “fails to raise any objection to a bill of costs” or “fails… to appear at a hearing set down under rule 21B(4) or 21C(1)”. I agree with the 2^nd to 6^th Plaintiff’s counsel Mr Joshua Chan that the “decision” in question must be a decision made as a result of the failure. I reach my view for the following reasons:-

(1)  Reading the whole rule in context, it would unreasonably and unnecessarily stretch the word “decision of a taxing master made against that party” here if the “decision” can be read to mean any decision against “that party”, whether the “decision” was made as a result of the failure.

(2)  Further, to read the rule purposively, if the power to set aside or vary the decision can be exercised only when there was such failure on that party, the decision must be made as a result of the failure. Otherwise, I can see no purpose why the exercise of the power would have to be made dependent on such failure as a pre-condition.

34.Insofar as there is any suggestion that a review under Order 62 rule 17A would be rendered redundant, or there would be overlap between Order 62 rule 17A and Order 62 rule 17B, I reject such suggestion for the following reasons:-

(1)  A review under Order 62 rule 17A (and thus Order 62 rule 33) does not require the necessary condition of “failure” as in Order 62 rule 17B;

(2)  A review under Order 62 rule 17A (and thus Order 62 rule 33) does not require “good reasons”, consistent with the Court’s practice to require good reasons to explain any failure to raise a point or to attend a hearing before the Court would even think about whether to set aside or vary an order in question;

(3)  A review under Order 62 rule 17A (and thus Order 62 rule 33) allows fresh evidence by virtue of Order 62 rule 34, while there is not such a similar rule for Order 62 rule 17B review.

(4)  From the above, it is clear that a review under Order 62 rule 17A is a review of the taxation, while a review under Order 62 rule 17B is a review of a decision made as a result of the failure. There is no overlap.

35.Insofar as there is any suggestion that it would be absurd to have one set of procedural routes to challenge taxation decision or decision made as a result of the failure, and another set of procedural routes to challenge a costs decision made in taxation proceedings, I see no absurdity. Given the nature of taxation (which is focused on minute details and figures and can be highly discretionary), I see every reason why review procedures would be more readily available. However, for other decisions than taxation decisions, such as costs decisions, I see no reason why they should be treated different from other costs decisions in non-taxation proceedings. For example, a costs decision that costs follow the event in taxation proceedings would, in my view, deserve no different treatment to a costs decision that costs follow the event in non-taxation proceedings, given that the usual rule governs the matter and the nature of such decisions is completely different from taxation decision. For this, I should also refer to the general principle on appeal against Master’s costs order, namely, “a judge in chambers will not allow an appeal from a master’s costs order unless it is unreasonable or the master erred in law”: see Hong Kong Civil Procedure 2025 Volume 1 §58/1/6. I see no reason why a costs order even in taxation proceedings could be set aside or varied by the Master himself upon a lower threshold (a review threshold) just because it happens to be a costs order made in taxation proceedings, while in substance, it is no difference from any costs orders in non-taxation proceedings. Of course, if the review of a taxation decision would mean that the costs order should be varied (for example, the taxation decision is varied substantially from in favour of one side to be in favour of the other), then I can see that the review of the costs order can be said to be incidental to the review of the taxation decision.

36.In the present case, the refusal to give certification in §95(4) of Review Decision and §42(4) of the Costs Decision were made not as a result of the failure to raise any objection to the Bills. In respect of failure to attend the taxation hearings, although the decisions were set out together with the decision on the review applications, as explained above, these decisions were part of the taxation proceedings rather than the review application, and thus they were part of the hearing under Order 62 rule 21C under Order 62 rule 17B. However, although the 1^st Plaintiff (or the Former Administrator) did not attend the hearings and may be regarded as “fail[ing] to appear” at the hearings, as a result of the excuse from attendance granted by Master K Lo on 23 April 2013 (see §19 above), in my view, the 1^st Plaintiff was in the first place not entitled to attend the hearing – the 1^st Plaintiff would have to seek leave before they would be able to attend the hearing. Therefore, in my view, the 1^st Plaintiff cannot avail the procedure under Order 62 rule 17B.

IV.  TREATED AS APPEAL AGAINST REVIEW DECISION AND COSTS DECISION

37.Mr Jeremy SK Chan leading Mr Iverson Wong, counsel for the 1^st Plaintiff, submits that the Court should not be unnecessarily tied up with technical matter, and could treat the present application as an appeal against §95(4) of the Review Decision and §42(4) of the Costs Decision. Upon my enquiry with Mr Joshua Chan, for the 2^nd to 6^th Plaintiffs, to his credit, he very fairly submits that all the substantive matters have been set out before the Court and the 2^nd to 6^th Plaintiffs would not suffer any prejudice if the present hearing would be treated as a hearing of appeal against the Review Decision and the Costs Decision, save that he may have conducted the matter differently (for example, lodging appeal against other parts of the Review Decision or the Costs Decision) and subject to costs spent on submissions made on the scope of Order 62 rule 17B and matters related to the rule. Given the long history of dispute of the matter, and in the absence of any prejudice, I treat the present hearing as a hearing of an appeal against the Review Decision and the Costs Decision.

38.Properly done, I would have to grant leave for appeal out of time, given that the Review Decision and the Costs Decision were made in 2022 and 2023 respectively. The reason for the delay obviously was the genuine mistaken belief that Order 62 rule 17B was the appropriate procedure, and in the unique circumstances of the present case, where the Former Administrator commenced the taxation proceedings but showed no interests in actively pursuing it such that the 2^nd to 6^th Plaintiffs had to take up the matter and the Former Administrator was excused from attendance, at least in relation to the Costs Decision which was made against the Estate, I am satisfied that the reason for delay is an acceptable reason.

39.As regards prejudice, as mentioned above, Mr Joshua Chan fairly submits that there would not be any prejudice, save and except that he may have conducted the matter differently by lodging appeal and costs. I am in sympathy with the 2^nd to 6^th Plaintiffs’ that they may have lodged appeal against the other part of the Master’s decisions, for example, §42(1) of the Costs Decision that the 2^nd to 6^th Plaintiffs should pay the costs first. Where appropriate, I would accept that any delay in commencing such appeal caused by this procedural hassle arising from the 1^st Plaintiff’s reliance on Order 62 rule 17B were caused by good reason, if there would be such appeal. Of course, I should not be taken to mean that such an appeal would be meritorious – this is another matter. But I would accept that there would be good reason for the delay. As regards prejudice in terms of costs, this could be addressed by an appropriate costs order.

40.Ultimately, the important consideration is the substantive merits of the intended appeal.

V.  SUBSTANTIVE MERITS

41.The intended appeal against Review Decision can be readily disposed of. The issue in the taxation proceedings was the reasonableness of the Bills, but not the Fee Agreements, consistent with the PC’s Undertaking was that it “shall not rely upon the mere existence of the 1^st & 2^nd Fee Agreements to contend that the fees… are reasonable or chargeable”. Since the reasonableness of the Fee Agreements was not an issue, I would also refuse to give certification in relation to the Fee Agreements. There are no merits in the intended appeal against the Review Decision.

42.In respect of the Costs Decision, as mentioned above, “a judge in chambers will not allow an appeal from a master’s costs order unless it is unreasonable or the master erred in law”: see Hong Kong Civil Procedure 2025 Volume 1 §58/1/6.

43.I agree with Mr Jeremy Chan’s submissions that the 1^st Plaintiff should have been afforded an opportunity fairly to be heard before the Costs Decision was made against the 1^st Plaintiff. It is, in my view, no answer by saying that as mentioned above, at latest, in June 2023, PC informed C&L (acting for the Former Administrator) that the 2^nd to 6^th Plaintiffs were seeking costs against the Estate, but the Former Administrator (or the 1^st Plaintiff) took no action at all. In my view, the Former Administrator (of the 1^st Plaintiff) was legitimate to remain silent, thinking that the occasion would not be an appropriate one for the Master to make such costs order when the Estate was not represented in the hearings, especially when it would usually be for the Court seized of a Beddoe application (whether pre- or post-action) to consider materials other than the main action, like the advice and materials the beneficiaries have in pursuing the action to see whether it is reasonable to pursue the action. The test is certainly not whether the beneficiaries will win or lose the case at the end of the day, or simply whether the case is pursued for the benefit of the estate in question. With respect, ordering §42(2) of the Costs Decision without hearing the Estate, in my view, is an error of law.

44.Now with the matters and submissions put before me by the 1^st Plaintiff as well as the 2^nd to 6^th Plaintiffs, would I have made the same Costs Decision as Master M Wong did?

45.Having considered the matter, my answer is in the negative:-

(1)  The merits of the taxation proceedings would usually be a crucial consideration. If there were no merits in the taxation in the first place, even if a beneficiary was arguing in the taxation proceedings for the benefit of the estate in question, there is every reason why the estate should not be responsible for the costs, because consistent with a Beddoe application, a beneficiary should be protected by the estate in terms of costs only when there are some merits in the beneficiary’s case. Otherwise, it would be like a blank cheque from the estate even for unmeritorious applications.

(2)  I am aware that the present case has peculiar circumstances. First, it was the Estate itself which consented to the taxation proceedings. Second, since the Former Administrator was itself sued for the excessive bills, the Former Administrator, understandably, had no genuine interest in pursuing the taxation proceedings, and even had conflict of interest in doing so. Third, there must be someone to carry on the taxation proceedings consented to by the Former Administrator on behalf of the Estate. Fourth, realistically, the taxation proceedings could not be dropped because the appeal in CACV 120 of 2013 was dismissed upon the parties’ agreement to taxation, and the Former Administrator must have foreseen this given the relentless pursuit of the 2^nd to 6^th Plaintiffs of their claim against the Former Administrator and PC in respect of the legal fees. Fifth, in leaving the matter to the hands of the 2^nd to 6^th Plaintiffs, the 1^st Plaintiff in the present circumstances essentially asked the 2^nd to 6^th Plaintiffs to carry out the 1^st Plaintiff’s role in the taxation proceedings, proceedings to which the Former Administrator consented in the first place. Sixth, given the above history, I disagree with Mr Jeremy Chan that the taxation was a pure personal battle between PC and the 2^nd to 6^th Plaintiffs.

(3)  Peculiar the circumstances these are, there were offers made by PC (mentioned in §21 above) which the 1^st Plaintiff says should have been accepted. I can also see that the Estate may have evidence (for example, legal advice) to explain why the Estate did not pursue the taxation and against such evidence, the 2^nd to 6^th Plaintiffs may be regarded as unreasonably pursuing the taxation. Even if all the matters have been put forward before me, these are all the matters from the 1^st Plaintiff and the 2^nd to 6^th Plaintiffs only. The other beneficiaries of the Estate also have interest in making submissions on whether the Estate should bear the costs, because, as I can see, there may be some historical background which justified their decisions not to pursue the taxation matter. The other beneficiaries should at least be invited to make submissions.

(4)  Mr Joshua Chan submits that the taxation proceedings herein are under section 67 of the LPO but not under section 68 of the LPO, under which the beneficiaries themselves would be able to commence the taxation proceedings. By choosing section 67, Mr Joshua Chan submits, the 1^st Plaintiff should be the one responsible for the costs. I agree that this may be regarded as a starting point, but considering the history and the matters set out above, I think the matter has been taken far beyond this starting point.

(5)  Given the above, I would not have made §42(2) of the Costs Decision without affording a proper occasion for all the parties involved to explain why the Estate should or should not bear the costs.

46.Therefore, I am of the view that there are strong merits in the intended appeal against the Costs Decision.

47.In the circumstances, I refuse leave for time extension for intended appeal against §95(4) of the Review Decision, and grant leave for the time extension for the intended appeal against §42(4) of the Costs Decision. I consider the appeal proper at the same time here. For the reasons set out in §45 above, I allow the appeal and set aside §42(4) of the Costs Decision. I should add, as I said during the hearing, that I am indeed very tempted to determine the costs matter once and for all here. However, as mentioned above, the other beneficiaries of the Estate also have interest in making submissions on whether the Estate should bear the costs, and in the light of the antagonism among the beneficiaries as shown by the long history of the proceedings and the underlying proceedings, reluctantly, I have decided to set aside §42(4) of the Costs Decision only, without making any determinative decision on the matter.

48.Mr Joshua Chan submits that if I were to set aside §42(4) of the Costs Decision, as I now have, I should make it clear that I am not making decision on who should bear the costs mentioned in §42(4) of the Costs Decision. From the reasoning leading to my conclusion above, it is clear, and I make it clear at the risk of stating the obvious, that I am not making decision on who should bear the costs mentioned in §42(4) of the Costs Decision, and the interested parties (including the Estate and all the beneficiaries and potentially PC) should be afforded opportunity to present their case on the issue on appropriate occasion. For this, while I note that the 1^st Plaintiff has launched a Beddoe application, it is for the parties to decide how the opportunity should be afforded.

VI.  CONCLUSION

49.For the above reason, I make the following order:-

(1)  The 1^st Plaintiff’s Notice of Appeal filed on 12 August 2025 be dismissed;

(2)  The present hearing be treated as a rolled-up hearing of the 1^st Plaintiff’s oral application for leave to appeal out of time against §95(4) of the Review Decision and §42(4) of the Costs Decision and the appeal, if leave is granted.

(3)  Leave be granted for the 1^st Plaintiff to appeal out of time against §42(4) of the Costs Decision.

(4)  Appeal against §42(4) of the Costs Decision be allowed and §42(4) of the Costs Decision be set aside.

(5)  Leave be refused for the 1^st Plaintiff to appeal out of time against §95(4) of the Review Decision.

50.For costs, first, for the avoidance of doubt, the costs order made in the Order of Master Hew on 29 July 2024 is not disturbed. This is because on my view that Order 62 rule 17B is inapplicable, Master Hew was right in making the Order on 29 July 2024 to dismiss the 1^st Plaintiff’s application thereunder and make consequential costs order. In this regard, I note that the learned Master did not have the luxury I have here in taking up the matter as an appeal against the Review Decision and the Costs Decision, given that a Master does not have jurisdiction to hear an appeal against a Master’s order. Therefore, there can be no complaint that the Master should have put aside the procedural matter and make decisions on the substance like I have above.

51.Second, for the costs before me, substantial time has been spent on Order 62 rule 17B, on which I have found against the 1^st Plaintiff. The 1^st Plaintiff’s application for leave to appeal out of time and the appeal proper was made only during the hearing, though fortunately, substantive matters proved to be useful for the purpose of considering the appeal, but even that the 1^st Plaintiff has lost the appeal against §95(4) of the Review Decision. Taking a broad-brush approach, I think 50% of the costs should be apportioned to the Order 62 rule 17B and the §95(4) of the Review Decision. As a result, upon setting off, I make no order as to costs.

52.Lastly, I thank Mr Jeremy Chan and Mr Iverson Wong, counsel for the 1^st Plaintiff, and Mr Joshua Chan, counsel for the 2^nd to 6^th Plaintiffs, for their counsel assistance.

Mr Jeremy SK Chan, leading Mr Iverson Wong, instructed by Chui & Lau, for the 1^st Plaintiff

Mr Joshua Chan, instructed by Hau, Lau, Li & Yeung, for the 2^nd to 6^th Plaintiffs

The attendance of the Respondent was excused