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 : 20 January 2005

Date of Decision : 20 January 2005

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DECISION

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1.In order to obtain leave to appeal to the Court of Appeal, the Applicant has to show this Tribunal erred in point of law in making an order that the two parties do bear their respective legal costs arising from the Application of the Applicant.  In his written submission, the Applicant’s counsel did not say that in making the above order this Tribunal erred in point of law. 

2.The Applicant states that, due to 3 reasons, leave to appeal should be granted.  Those 3 reasons are related to the canvassing of facts.  The first reason relates to the “inadmissible evidence” of the Respondent’s expert.  This Tribunal had already dismissed the Applicant’s application that the evidence of this expert was inadmissible. The second reason states that the Tribunal’s ruling that the time spent on the lost items is much more than 2 hours is probably wrong.  What this Tribunal held is that the Applicant’s allegation that the time spent on unsuccessful items is 2.5 to 3 hours. That allegation was not supported by particulars.  Such estimation is on the very conservative side.  It is for the Applicant to prove its allegation.  The Applicant has to show that this Tribunal made an error on the finding of facts on this piece of evidence and not that this Tribunal is probably wrong.

3.The 3rd reason states that the Court failed to consider that the partially successful items should still be regarded as successful items in exercising the discretion in awarding costs.  If the partially successful items had not been regarded as successful items, this Tribunal would have ordered that the Applicant had to bear not only its own legal costs.

4.The Applicant refers to the case of Chung ManYau [1996] 3 HKC 614.  But he has not extracted any principle from that case.  So that case is not helpful to this application.

5.The fundamental reason for making the costs order is that the Applicant grossly inflated his claim, and 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.  The Tribunal finds that the applicant conducted his claim in a grossly unreasonable way.  The Applicant did not attack this part of the Judgment. 

6.Therefore I cannot see how the Applicant could have any chance to win his case regarding the order of costs in the Court of Appeal.  I therefore dismiss his application.

7.The Applicant do bear costs of this application, to be taxed on District Court Scale, if not agreed.

Representation:

Mr. Simon Lam, instructed by Messrs Chan & Tsu, Solicitors, for the Applicant

Mr. Raymond Tam, instructed by the Department of Justice, for the Respondent