Man Ping Nam v. Man Tim Lup and Others

HCMP 2417/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2417 OF 2007

----------------------

---------------------

---------------------

Before:  Mr Recorder A Ho, SC in Chambers

Date of written submissions:  9 February 2010

Date of ruling on costs:  31 March 2010

-------------------------------------

RULING  ON  COSTS

-------------------------------------

1.The Applicant is the manager of Man Sham Chung Wui (文深涌會) (“the Wui”).  He applied by Originating Summons for directions on the mode and manner of the proposed sale of 4 pieces of land belonging to the Wui (“the Application”).  I refused the Application in my Judgment handed down on 21 January 2010.  At the end of the Judgment, I invited the parties to present their submissions on costs. 

2.I have received submissions from the Applicant, and a set of joint submissions from the 2^nd, 4^th, 6^th, 9^th, 10^th, 13^th, 16^th, 17^th, 20^th, 21^st, and 22^nd Respondents.  I have not received any submissions from the 1^st, 3^rd, 5^th, 7^th, 8^th, 11^th, 12^th, 14^th, 15^th, 18^th, 19^th and 23^rd Respondents.

3.The background of the Application was already set out in my Judgment and I do not propose to repeat it here.  It is, however, necessary to note that until 18 June 2008, the persons named in the Originating Summons as managers representing the Man Sung Yeh Tso (文莘野祖) were Man Lok Yiu (文諾耀), Man Ying Lam (文英林) and Man Chang Fai (文燦輝).  They were apparently former managers of the said Man Sung Yeh Tso (文莘野祖).  (I will refer to them as “the former managers” without deciding when they had actually ceased to be managers – an issue which I understand may still be subject to arguments.)

4.The former managers issued a summons dated 12 March 2008, applying for their legal costs to be indemnified out of the Wui’s funds.  This was opposed by the Applicant.  By 2 summonses (dated 31 March 2008 and 5 June 2008) the Applicant applied to substitute Man Tim Lup (文添立) and Man Sum On (文心安) as managers for the said Man Sung Yeh Tso (文莘野祖), and to dismiss the former managers’ said application for indemnity.  These several summonses were eventually deposed of by a consent order of Master de Souza dated 18 June 2008, whereby the former managers were given leave to withdraw their application for indemnity, and the Applicant to substitute the present 1^st Respondent as managers to represent the said Man Sung Yeh Tso (文莘野祖).  Under this consent order the costs of the several applications, namely, the former managers’ summons, the Applicant’s 2 subsequent summonses, and the consent application itself, were all reserved. 

5.The Applicant now seeks an order that his costs in the Originating Summons, including all costs reserved, should be allowed to be paid out of the funds of the Wui.  I am satisfied that the nature of the Application was akin to an application by a trustee to seek the court’s determination of questions arising in the course of administration of a trust.  As such, it falls within the first of the three categories of cases mentioned by Kekewich J in his well-known decision of In re Buckton [1907] 2 Ch 406.  It is appropriate therefore that the Applicant’s costs (including any costs that had been reserved) should be paid out of the Wui’s funds on solicitor and own client basis.  I would grant a certificate for 3 counsel as no other party has taken issue with the number of counsel instructed to appear at the hearing on the Applicant’s behalf. 

6.As for the 2^nd, 4^th, 6^th, 9^th, 10^th, 13^th, 16^th, 17^th, 20^th, 21^st, and 22^nd Respondents, being members of the Wui, they are very much the beneficiaries of the Wui’s properties.  They are clearly entitled to be properly advised and also be heard in an application of this nature.  Having considered the part they played in this Application, I am satisfied that they, too, fall within the first category of cases mentioned in In re Buckton, and that their costs (including any costs reserved) should similarly be paid out of the Wui’s funds on solicitor and own client basis, with a certificate for counsel.

7.As already noted, the said Man Tim Lup (文添立) and Man Sum On (文心安), the present 1^st Respondent, only became parties to these proceedings from 18 June 2008.  They have both indicated in the Acknowledgment of Service that they would not be contesting the Application.  Apparently they were not legally represented.  I would not make any order for costs in their favour.

8.As for the 8^th Respondent, they had for a period until 23 January 2009 been legally represented.  Although they have not come forward to make any submissions for costs, I do not see any difference in their case and that of the 2^nd, 4^th, 6^th, 9^th, 10^th, 13^th, 16^th, 17^th, 20^th, 21^st, and 22^nd Respondents.  Indeed, the 2^nd, 4^th, 6^th, 9^th, 10^th, 13^th, 16^th, 17^th, 20^th, 21^st, and 22^nd Respondents have indicated that they would not object to the 8^th Respondent recovering their costs.  I would therefore make an order that the 8^th Respondent’s costs (including any costs reserved) be paid out of the Wui’s funds on solicitor and own client basis.

9.As for the 3^rd, 5^th, 7^th, 11^th, 12^th, 14^th, 15^th, 18^th, 19^th and 23^rd Respondents, none of them were legally represented and no order as to costs would be made in their favour.

10.That only left me with the costs of the former managers.  I have directed that a copy of the Judgment as well this Ruling be sent to the former managers at the addresses they had previously left with the Court.  I will reserve the question as to their entitlement to costs.  In the event that such an application is made, further directions will have to be given.

11.For the avoidance of doubt, the adjourned summons on wasted costs dated 30 April 2009, which remains outstanding, may be restored for hearing in the usual manner, if so advised. 

Mr Anthony Neoh, SC, Mr K M Chong and Mr Ernest Koo, instructed by Messrs Peter Mo & Co, for the Applicant

1^st Respondent:  Man Tim Lup (文添立), absent

Man Sum On (文心安), absent

as managers of Man Sung Yeh Tso (文莘野祖)

Mr Aidan Tam, instructed by Messrs Wong & Poon, for the 2^nd, 4^th, 6^th, 9^th, 10^th, 13^th, 16^th, 17^th, 20^th, 21^st & 22^nd Respondents

3^rd Respondent:  Man Kam Wah (文錦華), present

Man Kam Fai (文錦輝), present

Man Tai Cheung (文泰祥), absent

Man Yau Sheung (文有常), absent

as managers of Man Ming Yuen Tso (文明遠祖) also known as Man Ming Yuen Tong (文明遠堂)

5^th Respondent:  Man Chau Lam (文就林), absent

Man Chang Wan (文燦雲), absent

Man Tai San (文泰山), present

as managers of Man Fut Sheung Tso (文佛尚祖)

also known as Man Lun Fung Tso (文麟峰祖)

7^th Respondent:  Man Chung Hing (文中慶), present

Man Man Fook (文萬福), absent

Man Kam Fai (文錦輝), present

as managers of Man Sheung Pak Tso (文商伯祖)

8^th Respondent:  Man Lin Tai (文連泰), present

Man Cheung Fat (文祥發), absent

Man Lok Yiu (文諾耀), absent

Man Tim Lap (文添立), absent

as managers of Man Chuen Yeh Tso (文存野祖)

also known as Man Chuen Sheung Tso (文存常祖)

11^th Respondent:  Man Lai Shek (文麗石), absent

12^th Respondent:  Man Yuk Moon (文玉滿), absent

14^th Respondent:  Man Lin Hei (文連喜), absent

15^th Respondent:  Man Chang Ying (文燦英), absent

18^th Respondent:  Man Yau Sheung (文有常), absent

19^th Respondent:  Man Ping Yi (文炳宜), absent

Man Lap Yi (文立宜), absent

23^rd Respondent:  Man Whi Chung (文偉昌), absent