Collier Petty Ltd v. Wong Ching

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

V.C.J. Action No. 7936 of 1986

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BETWEEN

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Coram: Deputy Judge Litton QC in Court

Date of Hearing: 5th June 1987

Date of Delivery of Judgment: 5th June 1987

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JUDGMENT

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1. This is the judgment of the Court, on an appeal lodged by the Defendant Madam Wong Ching against a decision made by the Master on the 28th of May 1987 in which the Master refused the Defendant's application to adjourn the hearing of the taxation of the Plaintiff's bill of costs.

2. The costs in question were awarded by His Honour Judge Yung in Victoria District Court Action No. 7936 of 1986 in which the Plaintiffs were Collier Petty Limited and Madam Wong Ching, the Appellant here, was the Defendant.

3. That action was commenced in September last year claiming a sum of $49,740 by way of management fees in relation to a building in North Point called Han Palace Building.

4. On the 13th of November 1986 His Honour Judge Yung gave judgment for the Plaintiff in the sum of $49,290 and also ordered that the costs of those proceedings should be awarded against the Defendant on a full indemnity basis.

5. Madam Wong Ching has sought to challenge the basis of that award of costs. It is not clear to me at the moment what precisely is the status of that appeal, leave to appeal being necessary (it would appear) on a question of costs. At any rate, as matters stand today before me, there is the valid order of a court of competent jurisdiction in which costs on a full indemnity basis has been ordered against Madam Wong Ching. I approach her present appeal on that basis.

6. In March of this year Solicitors for the Plaintiff made an appointment for the taxation of the bill of costs to take place on the 28th of May 1987. On the 25th of Nay Madam Wong Ching took out an application to be heard on the same day as the day appointed for the taxation for an order that the Plaintiff's application to tax the bill of costs should be adjourned; her application was supported by an affidavit. A number of points were put forward as to why the Master should not proceed with the taxation. The Master, however, dismissed her application; having done that he proceeded to deal with the taxation of costs, as he was bound to do. It appears from what Madam Wong Ching tells me that she is dissatisfied with the quantum of the costs as taxed by the Master. However, as far as the appeal before me is concerned, there are really two matters which have been brought before me. One, that I should now, that is to say on the 5th of June, set aside the order of the Master made on the 28th of May dismissing the Defendant's application to adjourn. And two, that I should make an order for a stay of execution on the order for the payment of costs made by Judge Yung on the 13th of November 1986. It seems to me that both "applications" are misconceived. As to the first, the fact of the matter is that upon the Master dismissing the application to adjourn, he has proceeded with the taxation. Whatever the merits of the matter before the Master, the fact is that the dismissal of the Defendant's application to adjourn is a past event. It seems, therefore, that my appellate jurisdiction to interfere with the Master's exercise of discretion (whether or not to adjourn) is being invoked in vain. Now I am not saying that the Master was in any case wrong in not acceding to the applicati4n to adjourn. Indeed, on the material before me, it seems to me that he exercised his discretion in the only way he could. It seems tome right that these proceedings should be brought to an end as soon as possible. The action taken by Messrs. Collier Petty Limited is not taken in their own interests, but as administrators of the communal affairs of a building: a position to which they have been appointed by a court of law. If there are unpaid management fees, it is the duty of the Plaintiff to take proceedings to get in the fees. The more the proceedings are protracted, the more costly they become and the more that inures ultimately to the detriment of all the owners and occupiers of Ran Palace Building. It seems to me, therefore, perfectly proper for the Master to have acted in a robust way.

7. As to the application that I should now order a stay of execution with regard to the order for costs made by the Judge on the 13th of November last year, the only factor which has been put forward is the contention that the Plaintiff is a company with a very small issued capital. That fact alone cannot be sufficient to justify a stay. In any case, I am sitting here in an appellate capacity, on appeal from the Master's Order of 28th May 1987, and in that capacity I simply have no power to entertain an application for stay of execution of the District Judge's order.

8. The outcome is that this appeal is dismissed. The order is therefore the appeal is dismissed with costs.