Shamson Zeall & Co., Solicitors v. Hong Kong Chung Shan Lung Chan Clan Association

DCCJ 1767/ 2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1767 OF 2004

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BETWEEN

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RULING ON PLAINTIFF’S SUMMONSES:
FOR SUMMARY JUDGMENT
FOR STRIKING OUT DEFENDANT’S PLEADINGS
AND
RULING ON DEFENDANT’S SUMMONS:
FOR STRIKING OUT PLAINTIFF’SPLEADINGS

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Coram : Deputy District Judge E. Yip in Chambers

Date of Hearing :15 December 2005

Date of Judgment :22 December 2005

Introduction

1.The plaintiff was a solicitors’ firm.  Zeall was its proprietor.  He was also a director and honorary legal adviser of the defendant.  On 22 August 2003, the defendant retained him to provide legal service in a court case.  On 29 October 2003, the plaintiff issued a bill, Bill no. 51320, for $619,089 (CKW-7) to the defendant for work done.  It comprises:

(1)  The plaintiff’s own costs of $163,055;

(2)  The plaintiff’s own costs of $72,284;

(3)  Counsel Ms. Christine Law’s fee of $75,000;

(4)  Senior counsel Mr. Patrick Fung’s fee of $108,750;

(5)  Senior counsel Mr. Alan Leong’s fee of $200,000.

3.The defendant refused to pay on the ground of the plaintiff’s misconduct in the charging of fee and handling of the case.  The plaintiff issued a Writ of Summons to claim payment.  The defendant counterclaimed damages, among other reliefs, for the plaintiff’s misconduct.  The defendant later made a payment of $300,000.  The plaintiff still claims the balance, $319,089 (being $619,089 less $300,000 payment received after Writ of Summons).  

4.On 21 July 2004, the plaintiff issued a summons for summary judgment in the sum of $319,089. 

5.On 2 August 2004, the plaintiff issued a summons to strike out the defendant’s Counterclaim for it discloses no reasonable cause of action, is frivolous and vexatious, and otherwise an abuse of the process of the Court.

6.On 13 October 2005, the defendant issued a summons to strike out the defendant’s Statement of Claim and to dismiss the plaintiff’s action for they disclose no reasonable cause of action, are frivolous and vexatious, and otherwise an abuse of the process of the Court.    

Plaintiff’s case

7.The plaintiff is absent and unrepresented today.  From Zeall’s affirmation (filed 2 August 2004), he stated in effect that he had provided legal service under a retainer (exhibited in “SZSOLS-6” under Zeall’s 1^st affirmation, filed 10 May 2004)and should be paid.

Defendant’s case 

On plaintiff’s summons for summary judgment

8.Defence counsel refers to the plaintiff’s letter to the defendant (dated 25 March 2004, B93) as follows:

… Your Association please endorse a cheque payable to [our firm] for $619,089 so that [we] can pay the fees of those counsel and senior counsel.

11.He also refers to Zeall’s letter to Mr. Patrick Fung, S.C. (dated 31 March 2004, B111), which stated that Mr. Fung’s fee would be paid in due course. 

12.On 31 March 2004, the plaintiff issued the Writ of Summons for payment of the sum of $619,089.

13.On 18 August 2004, JSM, the defendant’s solicitors, wrote to the plaintiff to ask if any counsel’s fee had been paid.  The plaintiff did not reply.  So far there has been no news.

14.In Mong Man Wai v HH Lau & Co. [2003] 4 HKC 587, Deputy Judge A. Cheung (as he then was) held:

[U]nless counsel’s fees had been paid prior to the delivery of the bill, they could not be included in the solicitors’ bill of costs as disbursements (or otherwise) and no claim for such not-yet-paid counsel’s fee would be allowed …

15.Defence counsel submits that the plaintiff had not yet paid counsel’s fee of $383,750.  The retainer dated 22 August 2003 (“SZSOLS-6” under Zeall’s 1^st affirmation, filed 10 May 2004) does not so provide for prepayment of counsel’s fee.  Therefore such sum is not due from the defendant.  By payment the plaintiff $300,000, the defendant has actually overpaid $64,661 (being $619,089 less $300,000 and$383,750).   

16.I agree with this submission.  I dismiss the plaintiff’s summons for summary judgment.

On plaintiff’s summons to strike out defendant’s pleadings

17.On 8 September 2004, Master Yu directed (A56), among others, that:

3.	in respect of the Striking Out Summons:-
	…
	(c)	the plaintiff to serve the broad grounds of objection required by Practice Direction 19.1 paragraph 5 for striking out within 4 days from the date hereof”

18.So far, the plaintiff has not served any such grounds.  Defence counsel submits that the defendant does not know what grounds to meet. 

19.I agree with this submission.  I dismiss the plaintiff’s summons to strike out the defendant’s pleadings.     

On defendant’s summons to strike out plaintiff’s pleadings

20.Upon receipt of the defendant’s payment of $300,000, practically nothing is left in the plaintiff’s claim.  I make an order to strike out the plaintiff’s Statement of Claim and action for they disclose no reasonable cause of action. 

Costs

21.Defence counsel reminds me that the Statement of Claim (for $619,089) had been correct when issued but as a result of the defendant’s payment of $300,000 subsequent to it, it was no longer correct. He proposes to have costs reserved of the action pending the trial of the Counterclaim or further order.  I agree with this proposal and so order.   

22.For the 3 present summonses, there is no apparent reason why costs should not follow the event.  I order costs nisi to the defendant with certificate for counsel.  The order shall become absolute after 14 days from today.   

Dated this 22 December 2005

Plaintiff: Shamson Zeall & Co., Solicitors, in person

Mr. Paul Lam instructed by M/s Johnson, Stokes & Master for Defendant