Man Lin Tai v. The Secretary for The Environment, Transport and Works
Read the full judgment text of LDRW 14/2004 on BabelCite. This LDRW judgment.
1. This is a claim for payment of costs or remuneration reasonably incurred or paid in employing persons to act in professional capacities in connection with a claim for compensation by reason of the resumption of land. It is brought under section 10(2)(e)(ii) of the Lands Resumption Ordinance, Cap. 124.
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LDRW 14 OF 2004 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION Railways ordinance Application No. 14 of 2004 _______________ Between
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_____________________________________ REASONS FOR JUDGMENT _____________________________________ 1.This is a claim for payment of costs or remuneration reasonably incurred or paid in employing persons to act in professional capacities in connection with a claim for compensation by reason of the resumption of land. It is brought under section 10(2)(e)(ii) of the Lands Resumption Ordinance, Cap. 124. 2.The land resumption case had been settled between the parties without any application having been made to this tribunal. It was a case of compensation for extinguishment of leasehold interest in 4 lots of land. The Applicant was the tenant of these lots, which were let to him by four different landlords. He in turn sublet them to subtenants. The claim for compensation was settled at $755,000. 3.The Applicant’s present claim is for remuneration at $174,480, of which $133,925 is profit costs of solicitors, $8,000 is for the law costs draftsman for drafting the bill of costs, $31,375 is for the surveyors and the rest are for disbursements. The surveyors’ fees are based on scale charge. The Respondent does not argue against these fees or the disbursements. The arguments are only on the solicitors’ profit costs and the law costs draftsman’s costs. 4.I would firstly deal with the law costs draftsman’s claim for 5 hours’ work at the rate of $1,600 per hour of $8,000. The bundle of documents in support of the bill has 376 pages. The bill covered 16 pages containing over 140 items. The Respondent says that 2 hours would be enough for the preparation of this bill. I do not agree. Time has to be spent on reading the documents for preparing the bill. I find 5 hours’ work reasonable and I so allow. 5.Turning to the claim of the solicitors’ profit costs, the first argument is on whether I should allow the costs at the District Court Scale or the High Court Scale. 6.The Respondent argues that the compensation claim was settled before any application had been lodged with the tribunal. He further argues that the claim for remuneration at $174,480 is within the District Court’s jurisdiction; hence, I should apply the District Court Scale. 7.I note that the limit of the District Court’s jurisdiction for claims under contract and tort was raised from $600,000 to $1 million on 1st December 2003. This compensation claim was settled by the Applicant’s acceptance of the Respondent’s offer of $755,000 on 28th October 2003. At that time, this sum was outside the District Court’s jurisdiction. 8.If I should ignore the amount of the compensation claim but to use the amount of the remuneration claim to find jurisdiction for the District Court, that would discourage the settlement of compensation claims before applications for the same have been lodged with the tribunal. If I should do so, the claimants would only want to settle their compensation claims after the same have been lodged with the tribunal so as to make sure that their remuneration claims, which form part of the compensation claims, would be assessed at the High Court Scale. I therefore do not think I should ignore the amount of the compensation claim as settled. 9.Furthermore, if such an approach were correct, then the District Court Scale would apply to remuneration claims so long as the remuneration is less than $1 million and regardless whether the compensation claim has been settled at $10 million or $20 million or more. Such an approach does not appear to be logical. 10.I take the view that so long as the settlement sum is outside the District Court’s jurisdiction, the remuneration claim should be assessed on the High Court Scale. 11.The Respondent’s next point is that the claim for compensation for resumption of land is more analogous to claims brought under section 35 of the District Court Ordinance than under section 32. Before its amendment which took effect on 1st December 2003, section 32(1) of the District Court Ordinance provided: -
12.Section 35, before 1st December 2003, read: -
13.I am told that the annual value of these 4 lots lumped together was less than $100,000 and hence the claim should have been within the District Court’s jurisdiction under section 35, hence I am told that I should apply the District Court Scale in assessing the remuneration. 14.I note that the compensation claim is for loss of leasehold interests which loss is analogous to business loss. I think section 32 provides a better analogy than section 35. For this reason, I do not agree that I should apply the District Court Scale. 15.The third point on the applicable scale relates to the increase of the District Court’s jurisdiction for claims in contract and tort to $1 million on 1st December 2003. The Respondent refers me to the case of Ali Shoukat v. Hang Seng Bank Limited HCPI3/2003. This action was instituted in 2003. It went to trial on 4th March 2004 and the plaintiff succeeded. The Honourable Mr. Justice Suffiad said at the end of the judgment that: -
16.In the present case, the compensation claim was settled on 28th October 2003, leaving the formal agreement to be made at a later stage. If the case of Mr. Shoukat did not go to trial in March 2004 but were settled on 28th October 2004, leaving a consent summons to be drawn up and approved at a later stage, I wonder whether the same costs order would have been made there. I therefore do not think I should follow the learned judge as the facts of this case are very much different from those in the case of Mr Shoukat. 17.All in all, I decide that the High Court scale should apply. 18.The next point raised by the Respondent is the applicable rate for the handling solicitor. I am referred to the Hong Kong Solicitors’ Guide to Professional Conduct, Vol. 1, paragraph 4.01, which reads: -
19.I am therefore told that the solicitor should have told the Applicant that he should go to a more junior solicitor for the prosecution of his claim as it is a simple one. I am also referred to the case of Chan To-pui v. The Secretary for the Environment, Transport & Works LDMR 10/2003 where His Honour Judge Chow said at paragraph 5: -
20.The Respondent submits that I should also allow the hourly rate of a solicitor of 8 years’ standing only and, if I should apply the High Court scale, that would be between $2,900 to $3,500 per hour, and I should not allow the hourly rate of $4,000 as claimed by the handling solicitor who was admitted in the year 1989. 21.The case of Chan To-pui was a simple resumption case and I am told that the matter to be dealt with was a simple case of proving title. Furthermore, the learned judge in that case had already held that the District Court Scale should apply there. The present case is more complicated and involved four different lots from four different landlords and also subletting to different tenants. It was a sort of extinguishment of a business of letting and subletting. 22.As the nature of this case is more complicated, the compensation claim had gone through about 5 drafts before it was submitted to the Respondent. The amount of claim was also revised from $514,000 to $940,000. It was eventually settled at $755,000. The papers in the bundle show that the handling solicitor had made useful contributions to the preparation of this claim. I am of the view that it was reasonable for the Applicant to have engaged this handling solicitor and I allow the hourly rate of $4,000. 23.What remains are arguments of lengths of time spent on individual items. There is one item that is worth express mentioning. The solicitor has spent 4 hours and 40 minutes for taking instructions, conferring with the expert and then drafting a reply letter to some requisitions raised by the Respondent. I have considered the requisitions and the reply and I think all the work should reasonably have been done within 3 hours and 40 minutes. Hence, I take 1 hour off the conference time for that task. 24.For the rest, mutual concessions have reduced the items that are in dispute. For the remaining few that have to be adjudicated, I have made my decisions on a table presented by the Applicant. I do not think it necessary for me to go through each and every one of them. The total profit costs as agreed and allowed is $86,851 and the disbursement is $40,555. The total sum is $127,406. 25.Finally, I also order that costs of this application including the costs previously reserved be to the Applicant. I have decided that the scale for the costs and remuneration should be that of the High Court and not that of the District Court because, when the costs and remuneration were incurred, they were incurred for the prosecution of a High Court claim. However, when the costs were incurred for prosecuting the remuneration claim, they were incurred for the prosecution of a District Court claim as the quantum of the remuneration claim is within the District Court’s jurisdiction. Hence, I order that the costs of this application be taxed in accordance with the District Court Scale.
The Applicant : represented by Mr. Joseph W. K. CHAN of Messrs. Chan & Tsu, Solicitors. The Respondent : represented by Mr. Sean FANG, Senior Government Counsel of the Department for Justice. |
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