The Incorporated Owners of Champion Court v. Pang Ping Fan Peter and Another

CACV 317/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 317 OF 2006

(ON APPEAL FROM DCCJ NO. 55 of 2005)

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BETWEEN

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Before: Deputy High Court Judge Mayo in Chamber

Date of Hearing: 5 January 2010

Date of Judgment: 5 January 2010

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J U D G M E N T

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1.This is an appeal from an order of Master Levy on a taxation.  The Master ordered inter alia that the “preliminary issue on the breach of indemnity principle” be adjourned for directions.

2.At the adjourned hearing on 15 May last year, she held that there had been no breach of the “indemnity principle”.  It is against this order that the Appellants are appealing.

3.The background to this litigation is rather unfortunate.

4.The Incorporated Owners sued the Appellants in the District Court in respect of the breach of the terms of the Deed of Mutual Covenant relating to the flat owned by the Appellants at Champion Court.

5.The case was heard by District Judge Wesley Wong who held in favour of the Incorporated Owners and he ordered that costs be to them.

6.The Appellants appealed against the court’s decision.

7.The Court of Appeal dismissed the appeal and also ordered that costs should be paid by the Appellants.

8.Master Levy was seized with the taxation of the Bill of Costs before the Court of Appeal.

9.The main issue which was before the Master was whether the Incorporated Owners had authority to give instructions to the solicitors who represented them in this litigation.

10.Ms Ng for the Appellants contended that the minutes of the meeting when approval was given for the Incorporated Owners to proceed against the Appellants had not been signed by any of the members of the Committee.

11.As the constitution of the Committee is not immutable practical difficulties were encountered in rectifying this situation.  However, a decision was eventually made to hold a further meeting to ratify the decision of the earlier meeting.  This was done.

12.Ms Ng also complained that it could be inferred from all of the surrounding circumstances and documentation that a contingency agreement in respect of the costs had been entered into between the Incorporated Owners and their legal advisors.

13.At the hearing before me, I invited Ms Ng to refer me to any available evidence to support this contention.  She was unable to do so.

14.It is not entirely clear to me what the so called “indemnity principle” embraced.

15.What is clear is that the Incorporated Owners gave instructions to their solicitors to prosecute this litigation.  They did so and won the case in the District Court and the decision of the Judge was upheld by the Court of Appeal.

16.The important matter to bear in mind is that the Taxing Master was bound by the mandate contained in the Order which was the subject of the taxation.

17.Any issue relating to the authority of the Incorporated Owners to instruct their lawyers should have been raised at the commencement of the proceedings.  It is quite wrong that it should have been ventilated at such a late stage.

18.The consequence of all of this is that the appeal is dismissed.

19.The taxation can accordingly now be proceeded with.

20.The costs of this appeal will be to the Incorporated Owners.

Mr Alvin Tsang, instructed by Messrs Jesse H Y Kwok & Co, for the Plaintiff/Respondent

Ms Ng Siu Ling, instructed by Messrs Bennett Chan & Co, for the 1^st and 2^nd Defendants/1^st and 2^nd Appellants