The Kwangtung Provincial Bank v. Charterbridge Ltd and Others

Case No.HCA 1402/1994

Court

High Court CFI

Date19 Mar 1999

Judge—

Case Document

100%Judiciary

HCA001402/1994

HCA 1402 of 1994

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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BETWEEN
	THE KWANGTUNG PROVINCIAL BANK	Plaintiff
	AND
	CHARTERBRIDGE LIMITED	1^st Defendant
	TSANG WING LAM	2^rd Defendant
	LIU SO PING	3^rd Defendant

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Coram: The Hon. Mr. Justice Waung in Chambers

Date of Hearing: 13 August 1998, 16, 17, 18, and 19 March 1999

Date of Delivery of Judgment: 19 March 1999

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JUDGMENT

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1. This hearing is for the gross sum assessment of costs under two Orders of this Court made in March 1997.

2. The 1^st Defendant company ("Company") was a customer of the Plaintiff bank ("Bank"). Banking facility was granted by the Bank to the Company guaranteed by the directors of the Company, the 2^nd Defendant ("Tsang") and his wife, the 3^rd Defendant ("Mrs. Tsang"). In 1989, the Bank commenced proceedings in the District Court alleging that some $5,000 odd was owing as balance under the bank account of the Company ("AC Balance Claim"). and that some $20,000 odd was owing under Trust Receipts ("TR Claim"). Tsang and Mrs. Tsang were sued as guarantors. The proceeding was vigorously defended by the three Defendants and a counterclaim was lodged against the Bank alleging that the Bank was liable for failing to open certain letters of credit ("LC Claim"). The District Court proceeding was transferred to the High Court. Eventually after a number of interlocutory hearings in 1996 and 1997, the matter was resolved by the parties agreeing to:-

(1)	The LC Claim being withdrawn with each party to bear its own costs relating to the LC Claim;
(2)	Judgment being entered against the 3 Defendants for $5,670.49 in respect of the AC Balance Claim with costs to be taxed on District Court scale;
(3)	Judgment being entered against the 3 Defendants for $20,377 plus interests in respect of the TR Claim with costs to be taxed on District Court scale but only up to 11^th January 1997.

3. On 11^th of June 1997, the parties consented to an Order that instead of the two sets of costs under the AC Balance Claim and TR Claim being taxed on District Court scale that such costs should be determined by Waung, J. under Order 62 rule 9(4)(b) in a gross sum.

4. The Plaintiff prepared one Bill of Costs in respect of the AC Balance Claim on District Court scale ("AC Balance Bill") and one Bill of Costs in respect of the TR Claim on District Court scale ("TR Bill"). There were violent disagreements however between the parties as to what should be the proper sum recoverable under each Bill and the gross sum determination under Order 62 rule 9(4)(b) was made extremely difficult by the inaccuracies of the two Bills and the way Tsang conducted the proceedings.

5. Under the TR Bill, the Bank claimed the sum of $233,361.00 being $105,785.50 for disbursement and $127,575 for costs. Under the AC Balance Bill, the Bank claimed the sum of $471,752.00 being $222,597.50 for disbursement and $249,154.50 for costs. It is to be noted that therefore the Bank was claiming $705,113.00. This sum was strongly contested by the Defendants as being grossly excessive. I agree. What should be the proper sum for costs assessed on the basis of District Court scale and in the case of the TR Bill limited to 11^th January 1997. This is by no means an easy matter specially having regard to the considerable unreliability of the two Bills.

6. In coming to my final determination of a gross sum for each set of costs, I have of course taken into account all the circumstances and everything which had been said to me. In particular, however I have also noted the following matters:-

1.	It is not unreasonable for the Plaintiff to engage Counsel for some purposes but Counsel's fees as submitted in the Bills are not reasonably all recoverable;
2.	Fees of Counsel and solicitors should reflect costs on District Court scale;
3.	Costs of both Bills should exclude all elements relating to the LC Claim;
4.	The costs of the TR Claim stops on 11^th of January 1997;
5.	The total cost of the two Bills now before the Court at some $700,000 is very very much higher than the original bills or 17^th March 1997's estimate of $480,000;
6.	Very large proportion of the total costs incurred by the Plaintiff was in respect of the LC Claim and that much of the two Bills must be discounted because of this large LC Claim element;
7.	Much of the two Bills are inflated or inaccurate claims and must be reduced substantially.
8.	The law costs draftsman's costs are excessive;
9.	The various concessions made by the Bank.

7. Accordingly, my determination of the gross sum costs (inclusive of the costs of this hearing) in respect of the TR Claim is $80,000 and in respect of the AC Balance Claim is $150,000.

	William Waung
	Judge of the Court of First Instance High Court

Representation:

Mr. Har, Law Costs Draftsman for the Plaintiff instructed by Messrs Lau & Co.

Mr. Tsang Wing Lam (the 2^nd Defendant) & Madame Liu So Ping (the 3^rd Defendant) acting in person and as directors of the 1^st Defendant.