Mui Po Chu v. Moi Oak Wah

HCMP001927/1995

No. MP 1927 of 1995

(On Appeal from Action No. MP 1927 of 1995)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Hartmann in Chambers

Dates of Hearing: 26 and 27 March 1998

Dates of Judgment: 26 and 27 March 1998

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J U D G M E N T

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1. In this matter, the Appellant, Mui Po Chu, appeals against the taxation of various bills of costs by Master Chung. I shall deal with each bill in turn, identifying them by reference to the various orders of court in terms of which costs were awarded.

A. Court of Appeal judgment dated 12th June 1997

2. In respect of this bill, the Appellant does not take issue with individual items that were allowed by Master Chung. It is instead her contention that the bill did not fall due for taxation at all. As I understand it, the Appellant accepts that costs were awarded against her in civil action 103 of 1997, the order flowing from a judgment of the Court of Appeal dated 12th June 1997. It is her argument, however, that the Court of Appeal made certain further orders on 24th February 1998 and the effect of those later orders was to extinguish the earlier order for costs against her, if not directly then at least by clear implication.

3. To better understand the Appellant's arguments in respect of this bill and others which are the subject of this judgment, some background must first be given -

1. The Appellant's mother, Madam Chan York-yu, died in February 1987. She was survived by her husband and three children: two sons and the Appellant. On 17th January 1989 Letters of Administration were granted to the husband who then came under a legal duty to administer the estate and distribute the assets in accordance with the Intestates' Estates Ordinance, Cap. 23. In terms of the Ordinance the Appellant became entitled to a one sixth (1/6th) of the residuary estate.

2. In 1995, solicitors acting for the Appellant wrote to the Appellant's father in his capacity as administrator of the estate seeking accounts of his administration. Accounts were supplied but the Appellant was not satisfied and took out an originating summons for a full accounting.

3. At an early stage of proceedings the Appellant became unrepresented and continued the litigation in person. Since that time the litigation has been marked by a large number of affirmations, exhibits and interlocutory summonses.

4. The 'central action', if I may call it that, went for trial before Woo J. in December 1996. In January 1997, he gave judgment dismissing the Appellant's claim. However, the father (the Respondent) had made a counter-claim on the basis that during the administration of the estate (and when his daughter had apparently been studying in England) he had made interim payments to her which exceeded her entitlement in the estate. Woo J. found that there had been such an overpayment and gave judgment in the amount of $537,048.48 in favour of the Respondent.

5. The Appellant appealed Woo J.'s judgment. Her appeal was heard by the Court of Appeal in April 1997 and judgment given on 11th of that same month. In giving the leading judgment, Litton J.A. (as he then was) said -

"The judge gave judgment on 3 January 1997 dismissing the appellant's claim but gave judgment in the respondent's favour on his counter-claim in the sum of $537,048.48 and awarded "costs of the action" and of the counter-claim to the respondent. By "costs of the action" the judge meant the costs of the proceedings apart from the large number of interlocutory matters the costs of which were separately dealt with. This appeal does not concern those interlocutory matters." [my italics]

6. As for Respondent's counter-claim in the sum of $537,048.48, the Court of Appeal found that the trial judge had been in error in making that award and that, without a proper accounting, it was impossible to say whether Appellant had been overpaid or underpaid. The judgment on the counter-claim was therefore set aside. In any event, the Court of Appeal found that, if there had been any overpayment to the Appellant, that overpayment had been extinguished. Litton J.A. expressed it thus:

"The position as it stands today is this. When Shop 4 was sold on 25 November 1996, shortly before the hearing, a sum of $1,548,130.70, representing 1/6 of the net proceeds of sale, were paid into court. By orders made in December 1996 Woo J permitted $950,000 to be paid out to the appellant, leaving $598,130.70 in court. Pursuant to his judgment given on 7 January he gave liberty to the respondent to satisfy the judgment on the counter-claim out of that sum of $598,130.70 and this has been done. The result therefore is that, as things stand today, there is no "overpayment" to the appellant - the previous "overpayment" having been recouped from the proceeds of sale of shop No. 4."

7. The Court of Appeal concluded by expressing the hope that the sole remaining asset in the estate (a property) could be sold as soon as possible so that the process of winding up could be completed without further delay. This judgment, however, did not resolve matters. The Appellant continued her litigation. Inter alia, she now sought from Respondent payment of the $537,048.48 which he had recouped from a sale of one of the estate properties already disposed of.

8. A number of these new matters came before Yeung J. on 7th and 15th May 1997. He resolved them in favour of the Respondent and the Appellant appealed. This second appeal came before the Court of Appeal in June 1997, judgment being delivered on 12th of that month. As for the sum of $537,048.48 which the Appellant now believed her father, the Respondent, should pay to her, Godfrey J.A. said the following:

"The first point concerns a sum of $537,048.48 which the plaintiff says ought now to be paid to her under an earlier judgment of the Court of Appeal ..... The plaintiff now appears to believe, and she contended before us, that she is in some way entitled to an order for payment of that sum to her. But this is completely misconceived. The fact of the matter is that the Court of Appeal made no order for that sum to be paid to the appellant, nor has any other court done so. There is no order which she can enforce for payment to her of that sum, and there is certainly nothing against which she can appeal in relation to it. For all these reasons, we can do nothing to assist her over this matter of the $537,048.48."

9. As for the costs of this second appeal (being an appeal in civil action 103 of 1997), the Court made the following order:

"I would order that the costs of the respondent be taxed and as to one half thereof paid by the appellant to the respondent, and as to the other half to be raised and retained by the respondent in due course of administration of the estate of the deceased."

4. It was in terms of this order that Master Chung proceeded to tax the bill of costs to which the Appellant now takes objection.

10. The judgment of the Court of Appeal in this second appeal did not lay to rest the issue of the $537,048.48 to which the Appellant now believed she was entitled. Instead of perservering with a claim that this sum should be paid to her, however, it appears (as I understand it) that in July 1997 she issued summons seeking an order that this sum be paid into court by Respondent together with accrued interest. At the same time she issued a further summons seeking redress from Respondent in respect of certain collateral matters related to his alleged mismanagement of the estate. Both of these summonses were dismissed with indemnity costs on 28th July 1997 by Yam J. Again, the Appellant appealed.

11. For purposes of identification, it should be mentioned that the two summonses dismissed by Yam J. were issued under the case number: HCMP 1927 of 1995. The appeal, however, was given a different case number; namely, HCMP 3633 of 1995.

12. When this third appeal came before the Court of Appeal, it appears that there were a couple of adjournments and then, on 24th February 1998, the Court made various orders by consent. No judgment was handed down. Patently, therefore, Appellant and Respondent reached an understanding concerning the future conduct of matters which the Court of Appeal endorsed. Concerning that 'consent order', the last paragraph of the preamble reads as follows -

"AND the Applicant in person and the Respondent by his counsel agreeing on 24 February 1998 that the said application be treated as the hearing of the Applicant's appeal against the said Order dated 28 July 1997 and that an order be now made for the administration by the court of the estate of CHAN York Yu deceased (who died on 14 February 1987 intestate and Letters of Administration of whose estate were granted to the Respondent on 17 January 1989) together with an order for the Final Account hereinafter mentioned."

5. What follows that paragraph is the following:

"NOW IT IS ORDERED that the said Order of 28 July 1997 be set aside and that:

1. The trusts arising under the intestacy of the above-named deceased be performed and carried into execution.

2. The following Account be taken, that is to say a Final Account of all the property of the said deceased come to the hands of the Respondent (or to the hands of any other persons or persons by the order or for the use of the Respondent) and of all the Respondent's dealings therewith.

3. The said Final Account is to be verified by affidavit and filed not later than 4.30 p.m. on 21 April 1998 (with a copy thereof to be supplied to the Applicant also no later than 4.30 p.m. on 21 April 1998).

4. In taking the said Final Account the Respondent is to be entitled and bound to adopt the findings of Mr. Justice Woo made in his judgment dated 3 January 1997 (otherwise than those made in relation to the Respondent's counterclaim).

5. The further consideration of the Applicant's action is adjourned and remitted to the Court of First Instance to which the parties are to be at liberty to apply for further directions and for any further consequential relief.

6. The costs of the Applicant and of the Respondent of this Application (and of the Applicant's said appeal) be respectively paid and retained out of the estate of the said deceased in a due course of administration."

6. This, I believe, sets out the relevant background. What then, in light of these matters, is the Appellant's submission as to why Master Chung should never have proceeded to tax the bill of costs ordered by the Court of Appeal on 12th June 1997 (see paragraphs 8 and 9 above)?

7. As I understand it, the Appellant contends that the 'consent order' of 24th February 1998 effectively sets aside the earlier order of that same Court in terms of which costs were ordered. On what basis does she make that contention? She has argued that the words in the 'consent order' - "Now it is ordered that the said Order of 28th July 1997 be set aside and that:" - have had the consequence not only of setting aside the orders made by Yam J. on that date but also of allowing the two summonses which were the subject of that order in their entirety. As a result, by implication, she now has judgment in her favour for the payment into Court of $537,048.48 plus interest and accordingly the earlier decision of the Court in terms of which Godfrey J.A. said - "For all these reasons, we can do nothing to assist her over this matter of the $537,048.48." - has been set aside. As such, the earlier order for costs must also have been set aside.

8. With respect, I cannot agree. While the order of 24th February 1998 does set aside Yam J.'s decisions, the order then clearly goes on to spell out the consequences of setting them aside; namely, the matters detailed in orders 1-6. None of those orders accept (directly or indirectly) that the Appellant's two original summonses are to be allowed in their entirety and judgment entered in favour of the Appellant pursuant to those summonses. Indeed, in my judgment, it is clear that the consent order of 24th February was never intended to have any such consequences but was simply a rational device to try and suspend further litigation until the estate had been wound up and final accounts prepared. Paragraph 5 of the order states specifically that 'further consideration' of the Appellant's action be adjourned and be remitted back to the Court of First Instance with liberty given to apply to continue litigation, the clear inference being that it be adjourned until after the final accounts had been completed.

9. As for costs, in my opinion the wording of paragraph 6 of the 'consent order' is clear. The costs spoken of there are the costs of the third appeal (which had begun life as an 'application') and do not encompass costs awarded in earlier related matters.

10. Accordingly, the Court of Appeal by its order of 24th February 1998 was not in any way contradicting or cancelling the order that it had earlier made on 12th June 1997. The two orders are distinct from each other. The fact that both orders, in passing, make reference to the sum of $537,048.48 does not provide the nexus the Appellant desires. In any event, if (as may be the case) the Appellant has asked me to find that the Court of Appeal in its second order mistakenly contradicted itself, that, in my opinion, is a matter for the Court of Appeal to consider. I have explained to Appellant that I do not possess the power as a judge of first instance to make a ruling setting aside a judgment of a superior court. I emphasise, however, for the Appellant's benefit, that I see no contradiction in the orders; they are distinct orders which remain of full force and effect.

11. In all the circumstances, I am satisfied there is no substance in the appeal concerning the bill of costs taxed as a consequence of the Court of Appeal order made on 12th June 1997. The appeal is dismissed.

B. Court of First Instance order dated 1st December 1995

12. On this occasion, the Appellant came before Cheung J. in Chambers on appeal against an order made by Master Chung. Cheung J. dismissed the appeal (together with certain ancillary applications) and ordered that costs be paid by the Appellant. As I understand the Appellant, it is her contention that the award of costs against her was unjust. She said that her father, the Respondent, was represented by counsel at that time and the counsel bullied her, thrusting an affidavit into her hand at the last minute, giving her no time to digest its contents or to prepare a suitable reply. As a result, she said, she was unable to make her position known effectively to Cheung J. who dismissed her appeal (and ancillary applications) and awarded costs against her.

13. If that was the case, it seems to me that the Appellant should have appealed the order of Cheung J. rather than waiting until the bill of costs pursuant to the order was to be taxed and then objecting to the bill. It is not the bill to which the Appellant takes objection, that is just a list of fees and disbursements, it is the original order that she challenges. On that ground alone I consider her appeal to be misconceived.

14. But even if that was not the case, if the Appellant believed that on 1st December 1995 she found herself in difficulties, it was always open to her to request an adjournment to better prepare herself. It has not been suggested by her that she made such a request. I have sympathy for any litigant who appears in person. No doubt there are occasions when such a litigant finds himself or herself in a daunting situation and when perhaps, for lack of experience, he or she does not act to best advantage. But our courts always do their best to assist such litigants. Matters are explained. A personal litigant however is not entitled to any special advantage.

15. This appeal too must be dismissed.

C. Court of First Instance order dated 26th January 1996

16. On this occasion, the Appellant appeared before Chan J. (as he then was) to argue an interlocutory summons that she had issued. The summons requested certain interim payments from the estate. Having regard to circumstances prevailing at the time, Chan J. dismissed the summons with costs.

17. The Appellant contends that on this occasion too she was bullied by Respondent's counsel and had a document thrust upon her at the last minute to which she was unable to make an effective response as she had no time to do so. She accepts that she made no application for an adjournment.

18. In the circumstances, what I have said in respect of 'B' above must be repeated here. In respect of this matter, the Appellant has further contended that, at a later time, she was successful in obtaining some interim payments from the estate. That may be so but, in my judgment, it does not affect the issue. An order for later payments would have been made in different circumstances.

19. This appeal too must be dismissed.

D. Court of First Instance order dated 24th May 1996

20. On this occasion, the Appellant appeared before the late Jerome Chan J. to argue her interlocutory summons. The summons, I am told, contained a demand for certain rental details. The summons was dismissed with costs.

21. In respect of this matter, the Appellant contends that the Respondent refused to disclose details of rentals obtained from one of the estate properties and she was simply seeking justice. It is her submission, therefore that the order against her was unjust.

22. But if that was the case, the proper course for the Appellant to have taken was to appeal the Court's order not to wait until taxation and then object to the bill. There is no way in these circumstances in which I can disturb an order made by a judge of equal jurisdiction.

23. This appeal too must be dismissed.

E. Court of First Instance order dated 15th May 1997

24. This relates to a further interlocutory summons issued by the Appellant which was dismissed. On this occasion it appears that the judge was Yeung J. Again, the Appellant submits essentially that she was unjustly dealt with by the Court. If so, her proper course was to appeal the order made by the judge. This appeal too I consider to be misconceived. It must therefore be dismissed.

General ground of appeal in respect of B, C, D and E

25. It should be mentioned that the Appellant also argued a ground of appeal which she said was applicable to all the above matters. It was her submission that the first Court of Appeal judgment dated 11th April 1997 ordered as follows -

"The judge's order that the appellant pays the respondent's costs of the action and of the counterclaim must be discharged: leaving, as I have said earlier, his orders concerning the interlocutory matters undisturbed."

That order, she argued, may not have encompassed any interlocutory orders made by Woo J. but it did encompass orders made by other judges and, therefore, encompassed the orders made on 1st December 1995, 26th January and 24th May 1995. I regret I am unable to agree with Appellant's logic in this regard. The order of the Court of Appeal dated 11th April 1997, in my judgment, did not affect, alter or encompass any of those orders.

26. As for the order of 15th May 1997 which came after the Court of Appeal judgment dated 11th April 1997, the Appellant referred me to a perfected order of Woo J. which made reference to certain earlier interlocutory orders. The perfected order was, however, silent on the matter of the order of 15th May 1997. That silence, it was argued, must imply that the judge was setting it aside, at least as far as costs were concerned. But the order of 15th May 1997 was made by a different judge, Yeung J. Woo J. in his perfected order would have had no jurisdiction to set aside the order of 15th May 1997. Having said that, I hasten to add that there is no evidence whatsoever that he ever attempted to do so.

27. The Appellant's 'general' ground of appeal, therefore, in my judgment, did not assist her.

F. The 'withdrawn' bill of costs

28. At the outset, this matter caused me considerable difficulty as none of the relevant papers were placed before me while, with respect, Appellant's Notice of Appeal summons and supporting papers were less than clear. I therefore obtained the taxation file itself in order to clarify the issue in contention. I stress that I obtained it solely for that purpose and no other.

29. As I understand it, the Appellant contends that the bill of costs in question was withdrawn by the Respondent. It was not, therefore, taxed. Indeed, it appears that it was wrongly placed before the Master. In allowing the bill to be withdrawn, the Master allowed Appellant a sum of $1,200.00 for her costs in opposing the bill. Appellant contends, however, that this was not sufficient and that she should properly have been allowed $6,400.00.

30. The papers show that Master Chung allowed the Appellant preparation time at the rate of $200.00 per hour. In addition he allowed her half an hour for the hearing and certain smaller sums for ancillaries. He did so in terms of Order 62 Rule 18 of the Supreme Court Rules.

31. It is the Appellant's contention that she has qualifications which are greater than those of a law draftsman and accordingly she should be paid at the same rate as if she was represented by a solicitor. She has referred me to her experience in the garment industry and to the fact that she has managed a factory in the past employing 200 people and that the amount that was awarded to her by Master Chung would have been derisory in that particular field of endeavour, even several years ago. She has also stated that she is the holder of a law degree from a recognised English university which she obtained full time over a period of 5 years. This, she has argued, entitles her to special status. I asked her about her university and the degree she obtained. However, she declined to tell me the name on the basis that she was prohibited for some reason from doing so. I suggested that perhaps she write it on a piece of paper and hand it up to me so that the Respondent, her father, would not aware of it. She declined to do this. She would only tell me that Mrs. Margret Thatcher has had some connection with this institution. She presumed that would be sufficient information for me.

32. However, whatever her past work history and her academic qualifications, the Appellant accepts that at all times material to the bill of costs which she opposed she was unemployed. Nor has she ever held any professional legal qualification admitting her to act as a solicitor or barrister.

33. Having regard to Order 62 Rule 18, I can find nothing wrong in principle in the manner in which Master Chung assessed the sum to be paid to Appellant. The Master assessed the sum due to Appellant on the basis that she was a litigant in person. That accords with the reality of the matter.

34. This appeal too must therefore be dismissed.

The new summonses

35. At the beginning of the hearing, I was made aware of two further summonses issued by the Appellant in this case (MP 1927 of 1995). Both of these matters were set down for hearing before me on 31st March 1998. But, as there were essentially related to the matters with which I have already dealt in this judgment and as both parties were happy to proceed to their immediate resolution, I heard the parties in respect of those two matters. I should also mention that the Respondent complained to me that his daughter's summonses were vexatious and were beginning to affect his mental, emotional and physical well-being.

36. As I understand it, the substance of these two new summonses relates to the Appellant's continuing belief that she is legally entitled to receive from her father the sum of $537,048.48 which, if not directly, has been awarded to her in indirect terms by the Court of Appeal in terms of its judgment dated 11th April 1997 (see '5' and '6' above). She therefore applied for the issue of a warrant of execution but such issue was refused by Master Chung. She has appealed against that refusal.

37. I have attempted to explain to her that her belief was ruled to be misconceived by the later judgment of the Court of Appeal dated 12th June 1997 (see '8' above) which, for the Appellant's benefit, I cite again -

"The Plaintiff [the Appellant] now appears to believe, and she has contended before us, that she is in some way entitled to an order for payment of that sum to her. But this is completely misconceived. The fact of the matter is that the Court of Appeal made no order for that sum to be paid to the Appellant, nor has any other court done so. There is no order which she can enforce for payment to her of that sum, and there is certainly nothing against which she can appeal in relation to it. For all these reasons, we can do nothing to assist her over this matter of the $537,048.48."

38. In my judgement, these words of Godfrey J.A. cannot be interpreted in any other way other than being a clear and definitive statement of the fact that there has been no judgment made in favour of the Appellant for this sum of $537,048.48. The Appellant, however, has referred me to a later order of the Court of Appeal which she says effectively rebuts this judgment. This is the 'consent order' made on 24th February 1998 (see '12' above).

39. In so far as I am able to grasp it, it is the Appellant's argument that, upon a sequential reading of the three sets of orders of the Court of Appeal, there exists either a judgment in her favour for $537,048.48 to be paid by Respondent from the assets of the estate or from his own pocket or, failing that, there exists a clear indication from the Court that, if the Appellant should seek payment of that sum, then she would be entitled to it in law. I have listened to Appellant, I have done my best to comprehend her submissions. I regret that I can find no merit in them. In my judgment, there does not exist at this time any judgment of a Hong Kong court in the Appellant's favour for this sum of $537,048.48 and accordingly no warrant of execution can be issued.

40. [In my judgment, Master Chung was correct to refuse to issue a warrant of execution. There is no judgment for that sum in favour of the Appellant.

41. I have queried why two summonses should be issued. The Appellant has advised me that Master Chung directed her to take this step. I am not in a position to argue with that. Suffice only to say that I am satisfied they both deal essentially with the same matter and, there being no substance in either summons, they are both dismissed.

Costs

42. I have dismissed each and every summons that has come before me for hearing. I can find no good reason why costs in each case should not follow the result. Costs are therefore awarded to Respondent in respect of each summons.

Final note (vexatious litigation)

While I appreciate that the Appellant believes deeply in the justice of her cause, I have advised her as gently as I can that her continual issue of summonses may possibly result in a finding against her that she is conducting her litigation in a frivolous and vexatious manner, indeed in a manner that is oppressive to the Respondent. I have, therefore, urged her to be more cautious before she issues further process.

(M. J. Hartmann)

Judge of the Court of First Instance

Representation:

Miss Mui Po-chu, Appellant in person.

Mr. Moi Oak-wah, Respondent in person.