Au Siu Foo v. The Secretary for Transport

LDRW 49/2003

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Railways Ordinance Application No. LDRW 49 of 2003

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Between

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Date of Hearing: 21^st October, 2004

Date of Judgment: 10^th October, 2004

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Judgment

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1.On 27^th August, 2004, this Tribunal made an order nisi that the parties in these proceedings do bear their respective legal costs arising from this application.  The Applicant applied to this Tribunal to vary this order, and asked the Tribunal to apply the decision of Yuen Yiu Kwong v. Chan Kwok Chuen & others [2003] 21-KLD 70, and to award full costs of this action to the Applicant.  The Applicant quoted the following passage from that case:-

“In the present case, although the amount I awarded to the plaintiff was far less than what the plaintiff would expect, I cannot regard the net amount awarded being in excess of HK$22,000 should be regarded as nominal damages.  Furthermore, the defendants resisted the plaintiff’s claim both on liability and quantum.  The plaintiff must be entitled to bring this action to establish his right to damages against the defendants.  Accordingly, I do not think that this is a case where I could regard the defendants as being the successful party.”

2.There is no principle established in the above passage.  Therefore it does not provide any assistance to this Tribunal to solve the present issue on costs.

3.According to section 12 of the Lands Tribunal Ordinance, this Tribunal has a discretion to award costs.

4.The application is for determination of the amount of professional fees under section 10(2)(e)(ii) of the Lands Resumption Ordinance, Cap. 124 (“the Ordinance”).  Under section 6(2A) of the Ordinance, the Respondent is obliged to pay the costs or remuneration reasonably incurred or paid by the Applicant in employing persons to act in a professional capacity in connection with the compensation claim, which was settled at $740,000 (see paragraph 2 of the Judgment handed down on 27^th August 2004).  Section 6(2A) provides: +

“Where, in the case of land resumed under an order made under section 3 on or after the commencement of the Crown Lands Resumption (Amendment)

Ordinance 1984 (5 of 1984), an offer of compensation is made or a claim for compensation is submitted to or by any person under this section, such offer may provide for the payment by the Authority to that person of, or such claim may include a claim for, any costs or remuneration reasonably incurred or paid by him in employing persons to act in a professional capacity in connection with such offer or claim.”  (Underlines provided)

5.The Applicant’s claim comprise a total of 63 items (some had sub-items) plus an item on disbursement.  Some of the items were withdrawn during the progress of the hearing and some were revised.  Of the 63 items (inclusive of sub-items) ruled by the Tribunal, 15 were disallowed and 15 items were assessed downwards.  The rest were allowed in full (but mostly after the Applicant had reduced the amounts claimed for the items in the course of the hearing).

6.The amount claimed was $377,400 (including $1,500 cost of reimbursement) but the amount awarded was $37,800, which was about 10% of the amount claimed, the amount claimed.  It is clear that the Applicant grossly inflated his claim.  Because of this inflation, the Tribunal had to spend a lot of time to examine in detail each item of work done, in order to decide whether it was reasonably incurred.  This Tribunal finds that the Applicant conducted his claim in an grossly unreasonable way.

7.The Applicant in its within submission claimed that the time spent on unsuccessful items is 2.5 to 3 hours, but this allegation is not supported by particulars.  No doubt such estimation is on the very conservative side.

8.The Tribunal finds that there is no good reason to disturb the order nisi; therefore this Tribunal makes it absolute forthwith.

Costs

9.The costs relating to this application be costs in the cause of this action.

The Applicant :     represented by Mr. Simon H.W. Lam, instructed by M/S Chan & Tsui, Solicitors for the Applicant.

The Respondent:  represented by Mr. Simon Lam, instructed by the Secretary for Justice for the Respondent.