Ma Chi Sing v. East Point Property Management Ltd and Another

LDBM 38/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

REVIEW of TAXATION

LDBM 38 of 2005

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BETWEEN

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Coram : Before Master B Kwan in Chambers

Dates of Taxation Hearings : 26 March 2007, 25 June 2007 and 30 July 07

Date of Review of Taxation : 8 August 2007

Date of Handing Down of Reasons : 20 August 2007

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REASONS for DECISIONS on REVIEW of TAXATION

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Background

1.This Review concerns the taxation of costs of a matter heard in the Lands Tribunal by HH Judge Yung.  The hearing before the Judge took 3 days, 23 January 2006, 24 January 2006 and 15 March 2006.  The Judge gave Judgment for the Respondent, and ordered the Applicant Mr Ma to pay 2/3 of the Respondent’s costs of the action, to be taxed on the High Court scale if not agreed.

2.The Bill was taken out by the Respondent (the receiving party) dated 21 November 2006.  The List of Objections were filed by Mr Ma’s (the paying party’s) former solicitors on 29 January 2007.

3.The taxation was fixed for hearing on 26 March 2007.  Several days before the taxation hearing, on or about 20 March 2007 the paying party Mr Ma faxed some Documents to the Court setting out his allegations of fraud against the receiving party.  On 21 March 2007 Mr Ma filed a Notice to Act in Person.  On 26 March 2007 Mr Ma appeared in person and declared that he wished to abandon the List of Objections prepared by his former solicitors Messrs Augustine Tong & Co.

4.I gave leave for Mr Ma to abandon the List of Objections prepared by Messrs Augustine Tong & Co for Mr Ma, but the taxation could not proceed because Mr Ma had not faxed the Documents containing his allegations of fraud on the receiving party prior to the hearing, the solicitors and the Law Costs Draftsman for the receiving party had no chance of considering Mr Ma’s allegations.

5.In the circumstances I adjourned to enable the receiving party to consider its position in the light of Mr Ma’s allegations, and make its response within 21 days.  The receiving party was directed to re-fix for taxation or, if it was appropriate, to apply for a new taxation callover for further directions before starting the taxation procedure again.  Mr Ma was ordered to pay the sum of $6800, being the costs assessed on gross sum basis of the Costs of the hearing on 26 March 2007.

6.On 25 June 2007 I explained to Mr Ma that I would query the items claimed in the Taxation Bill by the receiving party, and ensure that he would not be paying anything more than he ought to.  It became evident early in the hearing that the receiving party had not prepared a taxation bundle with all the relevant documents in support of items claimed in the taxation bill.  I had to adjourn the taxation again, so that the documents in support of the sums claimed could be perused.

7.I reminded the solicitors for the receiving party Messrs Terry Yeung by letter dated 28 June 2007 to provide all the relevant documents to the court at the adjourned hearing.  A copy of that letter in Chinese was sent to Mr Ma. To allay any fears Mr Ma might have, I directed that copies of the same letter in English and in Chinese were sent out.

The Taxation

8.The bill was finally taxed on 30 July 2007.

9.At that hearing, inter alia I allowed the handling solicitor $3000 an hour instead of the $4000 claimed; I reduced the hours he claimed from 6.5 hours to 3 hours; and made other reductions marked on the bill itself. In effect, I reduced $18,500 from $150,458.50.

10.I then calculated two thirds (2/3) of this sum and arrived at $87,972.33 and informed Mr Ma that this was the sum he had to pay the receiving party.

The Review

11.Mr Ma was dissatisfied with the taxation process.  He complained that the court had failed to carry out adequate “investigations” into his allegations of fraud.  He insisted that, as $60,000 had been the sum the former solicitors for the Incorporated Owners had agreed with the Incorporated Owners, then $60,000 should be the sum he ought to pay and not a cent more.  He accused the court of disregarding his complaints and allowed the taxation process to be used to perpetuate the fraud on him.

12.The effect of the quote of “$50,000 to $60,000” had been explained to Mr Ma in an earlier hearing.  The quotation can be found in a letter dated 21 February 2005 written by solicitor Johnnie Fung of Messrs Cheung & Yip to East Point Property Management Ltd.  The relevant part of that letter is reproduced below:

“	As advised previously, our fees will be charged on time spent and the current rate charged is $3000.00 per hour. It is difficult to make an estimation of our fees for work done at this stage.  We believe, however, the fees should not exceed $50,000 to $60,000.”

13.It is unfortunate that Mr Ma has refused to accept that the quote of “$50,000 to $60,000” was anything more than a quote, or estimate.  Mr Ma has insisted that his responsibility must be capped at two thirds of $60,000.  That in essence, is the crux of Mr Ma’s application for review of taxation.

14.There is no substance to the matters brought up for Review, and the same is dismissed.

15.The costs of the Review should be awarded to the receiving party, and I assess those costs on gross sum basis at half an hour of the Law Costs Draftsman’s hourly rates, ie $800.  This $800 should be added to the $87,972.30 payable by Mr Ma.

Applicant Mr. Ma Chi Sing appearing in person

Mr. S. Lau, Law Costs Draftsman instructed by Messrs Terry Yeung & Lai for the Respondent