Ho Ngai-on v. Edmund Cheung & Co

HCSA000015/1979

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Coram: Huggins, J.A., Yang and O'Connor, JJ.

Date of Judgment: 22 February 1980

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JUDGMENT

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Huggins, J.A.:

1. A firm of solicitors sued in the Small Claims Tribunal on a bill of costs for a sum limited within the jurisdiction of the tribunal. The Defendant had gone to them and asked them to draw up a deed of reassignment under a mortgage. The solicitors accepted those instructions and then discovered that the mortgagee had died. It was therefore necessary for personal representation to be taken out on behalf of the mortgagee in order that the necessary reassignment could be executed. This took a considerable length of time. Originally, the mortgagor thought that the same solicitors would take out the letters of administration. In fact, the mortgagees did not want that, and they engaged other solicitors.

2. The case was fought in the tribunal on the issue whether there was an agreement by the solicitors and the client to carry out all the work of obtaining letters of administration and of the reassignment for a total sum of $3,000 to $3,500. A sum of $500 was paid to the solicitors on account of the costs, but that receipt was never produced and the tribunal was not able to ascertain what it said. The adjudicator came to the conclusion that the $500 was not paid on account of the costs only of the reassignment, but was on account of both parts of the work. Presumably she concluded also that the bill was in respect of both jobs of work and she held that, because there had been no application for taxation of the bill, there was, under s. 66(2) of the Legal Practitioners Ordinance, a presumption that the bill bona fide complied with the terms of the Ordinance and she said that presumption was not rebutted.

3. Before us counsel has argued the matter rather differently. He has submitted that the presumption was rebutted on the face of the evidence: it was rebutted because, he submits, the entire bill relates to a reassignment of the property and only to a reassignment of the property and because, under the Second Schedule to the Legal Practitioners Ordinance, the maximum fee which could be charged by a solicitor for a reassignment was, in the absence of express agreement, $300. Therefore, he argues, the presumption must have been rebutted, because on the face of it the bill did not comply with the Ordinance. Miss Toh, on the other hand, has argued that the bill does include items other than the reassignment, and I have come to the conclusion that the whole case turns upon the interpretation of this bill of costs and whether or not all the items are properly described as being in relation to the reassignment in accordance with the words of the statute.

4. As to this it seems to me that all the items can properly be said to relate to a reassignment. When called upon to prepare a reassignment the first duty of the solicitor is to ascertain who is to reassign and that was what this solicitor did; and, as far as I can see, everything which followed flowed naturally from the request to him to obtain a reassignment of the property. There were conversations with the deceased mortgagee's husband and with solicitors who were subsequently instructed to obtain letters of administration. Finally, there were three items in the bill relating to the receipt and sending of letters to other solicitors employed by the solicitors' own client, the Respondent to the claim. It was necessary for the solicitors to obtain the signature of their client and I do not think that it is material that they were unable to obtain their client's attendance at their office rather than that they had to send the document for execution by the client and receive it back. Item 21, the last item on the bill, is "Attending you on several other occasions and generally advising you hereon", which we are informed, and which I accept, is a general catch-all inserted at the end of most bills of costs, and I see no reason to think that anything that is included in that bill is other than a matter properly related to the reassignment.

5. That being so it seems to me that the learned adjudicator was not right when she said that the presumption was not rebutted, because the statute itself provides that $300 is the maximum which can be charged. For that reason I would allow this appeal and enter judgment for the Respondent in the sum of $300 in the claim and I think the Appellant must have the costs of this appeal.

Yang, J.:

6. I agree. I have to confess that initially I was attracted by Miss Toh's analysis of the bill of costs, but on reflection I am now persuaded that the whole of the bill of costs concerned work done in relation to the reassignment. For these reasons I, too, would allow the appeal.

O'Connor, J.:

7. I also agree.

22nd February 1980.

Representation:

M. Bhrwaney (Lau, Wong & Chan) for Appellant.

Miss E. Toh (Edmund Cheung & Co.) for Respondent