Ng Yee Wah v. Lam Chun Wah

HCMP 4616/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4616 OF 2001

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BETWEEN

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Before: Hon Kwan J in Chambers

Date of Hearing: 10 February 2006

Date of Decision: 10 February 2006

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D E C I S I O N

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1.On 28 June 2005, I made an order on the re-amended originating summons under section 121 of the Companies Ordinance, Cap. 32.  I order the defendant to give inspection of the documents of a company to the plaintiff in the manner as specified in that order.  I shall refer to this as “the Order”.

2.Paragraph 5 of the Order deals with costs and reads as follows:

“The Defendant do pay the Plaintiff costs of and incidental to the re-amended originating summons save for the period as from 6 October 2004 up to 20 January 2005.  Costs of preparing the affidavit of Kan Ping Kee filed herein on 20 January 2005 be allowed to the Plaintiff.”

3.The defendant issued a summons on 3 February 2006, seeking

(1)   an amendment of paragraph 5 of the Order; and

(2)   a direction whether the Order would include the works set out in the plaintiff’s supplemental bill of costs dated 23 December 2005 which had been carried out after the Order.

4.The application to amend paragraph 5 of the Order was said to be made under Order 20 rule 11 of the Rules of the High Court and the inherent jurisdiction of the court.

5.The court has power to amend an order made where there are clerical mistakes or errors arising from accidental slip or omission or if there is some ambiguity in expression in an unambiguous decision.

6.The situation I am faced with is nothing of the kind. There is no clerical error or accidental slip, nor do I think there is any ambiguity.  The costs order is perfectly clear.  Whether any work done for the plaintiff is “of and incidental” to the re-amended originating summons is a matter for the Taxing Master.  In making the costs order, I had certainly not ruled that only costs incurred in respect of documents actually used and filed in the application are recoverable.  It is up to the Taxing Master to scrutinise the work done by the lawyers and accountants engaged by the plaintiff and allow such costs as he thinks fit insofar as such work is necessary and proper for the purpose of the re-amended originating summons.  So, if for instance, work done by the plaintiff’s team was much more than was required for the purpose of the application, or that the work done was more for the purpose of other litigation existing or contemplated between the parties, the Taxing Master would exercise his discretion accordingly.

7.I do not consider I have jurisdiction to amend the Order.  I turn to the next part of the application relating to the supplemental bill of costs.

8.The plaintiff lodged her bill of costs of taxation on 6  September 2005.  The taxation of this bill of costs was adjourned and fixed to be heard on 20 February 2006 for 1 day.

9.On 30 December 2005, the plaintiff issued a summons seeking leave to file a supplemental bill of costs for taxation regarding costs incurred after the Order, but said to be within the scope of the Order and that the supplemental bill of costs be taxed with the bill of costs at the hearing on 20 February 2006.

10.This summons was heard by Registrar Chan on 16 January 2006.  The order he made on that occasion was to adjourn the summons sine die with liberty to restore and costs were reserved.  It was canvassed before the Registrar that the plaintiff might make an application to me for a direction to clarify whether the work covered in the supplemental bill of costs would be within the scope of the Order.

11.The plaintiff had a change of mind after the hearing before Registrar Chan.  On 18 January 2006, the plaintiff issued a summons returnable before the Taxing Master on 20 February 2006 for leave to file and serve the supplemental bill of costs and that the same be taxed immediately after the bill of costs at the resumed taxation hearing on 20 February 2006. This prompted the defendant to issue the summons before me on 3 February 2006.

12.I do not think it appropriate to give a direction in terms as sought by the defendant in paragraph 3 of the summons.

13.It is a matter for the Taxing Master whether any of the work done in the supplemental bill of costs is “of and incidental” to the re-amended originating summons.  It is up to the Taxing Master to allow costs in respect of such work as is necessary and proper for the purpose of the application.  The fact that all the work was done after the Order was made is not conclusive to this issue.  I am in no position to make any ruling today, nor would it be appropriate for me to do so.  I therefore also refuse this application.

14.I have heard counsel’s submissions on costs.  I see no reason why costs should not follow the event.  I order the defendant to pay the plaintiff’s costs of the summons issued on 3 February 2006 forthwith.  I propose to tax the costs of the plaintiff on a gross sum basis.  I have been given a proposed statement of costs prepared by the plaintiff’s solicitors, claiming profit costs for work done by the solicitors on the basis of 9.5 hours’ work and disbursements for counsel’s fees.  I propose to tax down counsel’s fees to $10,000.00.  For the 9.5 hours of work done by the solicitors, I would reduce this to 4 hours, as I am of the view that 9.5 hours of work done is simply not justified in this situation.  The total amount that I have arrived at and rounded up is $27,000.00 and this shall be the costs allowed to the plaintiff on this application.

Mr Alfred Liang, instructed by Messrs David Wong & Co., for the Plaintiff

Mr Andy Hung, instructed by Messrs Pansy Leung, Tang & Chua, for the Defendant