Lam Dip Yee v. Bestwell Fareast Ltd and Others

HCCW001213A/2002

HCCW1213/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP PROCEEDINGS NO.1213 OF 2002

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Coram: Hon Chu J in Chambers

Date of Hearing: 29 September 2003

Date of Decision: 29 September 2003

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D E C I S I O N

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1.On 15 July 2003, I handed down the decision on the application by the 1st, 2nd and 4th respondents (collectively "the respondents") to strike out parts of the petition. I granted the application and made an order nisi that the cost of the application be to the respondents against the petitioner, to be taxed if not agreed. By summons dated 22 July 2003, the respondents apply to vary the costs order to provide for a certificate for two counsel. The respondents were represented by both senior and junior counsel at the hearing of the application for striking out. The respondents contend that it is justified to be represented by two counsel at the hearing. The petitioner opposes the application.

2.As a starting point, it is important to bear in mind that on an award of costs based on party and party basis, the relevant test is one of proper and necessary. Accordingly, in seeking to have a certificate for two counsel, the respondents have to show that it is both proper and necessary for a senior counsel and a junior counsel to be engaged for the striking out hearing.

3.The respondents justify the decision to instruct senior counsel on the basis that the application involved difficult question(s) of law, that the application was of great importance to the parties, and that it was in the interests of the respondents to engage senior counsel. As to junior counsels' involvement, it is justified on the basis that the junior counsel has been dealing with the matter throughout, and that his involvement had resulted in a saving in senior counsel's brief fee. It is said that overall speaking, the brief fees of the two counsel for the hearing was lower than the fees that senior counsel would have otherwise charged if he were to appear on his own.

4.For my part, I am unable to agree that the striking-out application involves any difficult or unsettled point or area of law. This would be apparent from counsel's submissions for the application as well as from the court's decision on the application.

5.As to the importance of the application, I do not doubt that the parties consider the outcome to be of great significance. I am also aware that there is another litigation pending that involves some of the parties herein, a fact that was disclosed in the striking out application. Mr Cheng further draws my attention to the fact that after the determination of the striking out application, the petitioner did not proceed with her application for the appointment of provisional liquidators.

6.Notwithstanding all these, it remains for the respondents to show that it is necessary for two counsel to be engaged. The fact that the application was considered of importance may well explain why the respondents desire or prefer to engage senior counsel and/or two counsel, but it does not necessarily follow that it is necessary to engage a senior counsel alongside with a senior junior counsel. In this regard, I note Miss Chan's submission that the junior counsel in question has been called to the Bar for some 10 years. I also note from the brief delivered to senior counsel that it was less than one month before the hearing that he was first involved. By that stage, all the evidence for the application had been filed. Hence senior counsel's involvement was confined to the appearance at the hearing of the striking out application. That being the case, I am unable to see the merits of the submission that senior counsel's brief fee was on a reduced level as a result of the engagement of junior counsel.

7.The hearing on 9 July 203 was scheduled for one day. In effect, it concluded well before the scheduled time. The hearing bundle was not bulky. There is no great complexity whether in terms of law or facts. Mr Cheng refers to the fact that there were some other affirmations filed for the purposes of the Petition and the application to appoint provisional liquidators. While I accept that these affirmations would have to be considered by counsel, the fact remains that this is not a case that involves very bulky or complicated documentations or disputes. In my view therefore, $150,000 is not a small fee for senior counsel's brief. It is argued that this is an "all inclusive" brief. This submission has ignored the principle that counsel's brief is not only to cover his first day of appearance in court, but is intended to cover perusal of papers, preparations for the appearance and a conference in connection with the court appearance.

8.In the same vein, there is no merit in the argument that, taken together, there is a substantial saving in the brief fees of senior and junior counsel. The two briefs come up to $200,000. It is hardly a low or reduced fee for an application to strike out part of the Petition that was scheduled for one day, having regard to the nature and complexity of the disputes involved. It cannot be said that it is a discounted or less than generous fee. On the contrary, had $200,000 been the fee for one counsel, it would appear to me to be a rather high fee that might well be difficult to be sustained on a party and party taxation.

9.For the above reasons, I do not accept that it is justified as a matter of principle to engage two counsel. The summons is accordingly dismissed. There is no reason why costs should not follow event. The petitioner's costs of the summons is to be borne by the 1st, 2nd and 4th respondents, to be taxed if not agreed.

Representation:

Ms Sheena Chan, instructed by Messrs Joseph P.K. Pang & Co., for the Petitioner

Mr James Cheng, instructed by Messrs Johnnie Yam, Jacky Lee & Co.,for the 1st, 2nd and 4th Respondents