Pradeep Ramchandra Ghatge v. Mukesh Kumar Adukia and Another
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DCCJ 333/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 333 OF 2010 --------------------
Coram : His Honour Judge Chow Date of hearing : 24th January and 10th March, 2011 Date of handing down Decision : 30th March, 2011 DECISION 1.There are two matters this Court has to deal with, namely, the Plaintiff’s inter partes summons (“the summons”) dated 21.1.2011, and his appeal against the costs order made by Master B. Mak on 18.11.2010. The summons 2.In the summons the Plaintiff seeks for :-
Execution of Order 3.The Order issued by Registrar S. Lo in chambers dated 2.9.2010 reads: “The Defendants do report to the Court the progress of mediation on or before 30th September, 2010”. On 29.1.2010, the Plaintiff instituted the present action against the 1st Defendant. In or about June 2010, both parties exchanged mediation notice and mediation response. In late June, they agreed on nominating a Miss Wong to act as mediator, and a mediation session was to be held in or about mid July, 2010. Subsequently, the Plaintiff applied to the Court to amend the Writ of Summons to join the 2nd Defendant into the action. Leave was granted to the Plaintiff. As a result of this change, no mediation was held in mid July, 2010. Then the 2nd Defendant applied to the Court for the Claim to be struck out. The hearing for this application was to be heard on 18.11.2010. On 14.9.2010, the Plaintiff took out an application to re-amend the Writ of Summons. Meanwhile no further step for mediation was taken. 4.On 9.11.2010, the Defendants sent a lettter to the Registrar of the District Court, stating:-
5.On 18.11.2010, leave was granted to the Plaintiff to re-amend the Writ of Summons. On 29.11.2010, the Plaintiff filed and served a re-amended Writ of Summons. He also lodged the appeal. On 21.1.2011, he took out the summons. 6.Though the report was not made before 30.9.2010, by the letter dated 9.11.2010 the Plaintiff did submit a progress report on mediation to the Court. Therefore there cannot be any issue on the execution of the Order made by Registrar S. Lo. 7.The Plaintiff requests an order from this court that the Defendants do proceed with mediation. He did not make this application in the summons. In any event, for an order relating to mediation to be meaningful, the parties must be willing to be engaged in such an activity. Mediation is a voluntary process. Since 11.9.2010 some significant developments to these proceedings have arisen. Either party, or both, may appeal against the decisions of the summons and/or the appeal. The position will only become clear after expiration of the appeal period. There is no evidence from the Defendants that after 9.11.2010 they are willing to participate in further mediation in light of the circumstances of this case. Due to the absence of such evidence, it is inappropriate for me to make any direction to proceed with mediation. Hence this court will not give any direction for mediation. Seeking direction from Court to action for attempted contempt of court for violation of order of Court by The Defendants and their solicitor 8.Under Order 52 of the Rules of the District Court, to commence an action for contempt of court, the applicant must make an ex parte application to a judge in chambers. The Plaintiff has not complied with this procedure. Hence the application in the summons must fail. Furthermore, in an action for contempt of court the Plaintiff must show that the parties intended to violate the Court order. The Defendants did submit to this Court a brief report on mediation on 9.11.2010. This reflects their intention to comply with the Court order, although, it is out of time. This application for contempt of Court must fail. Accordingly, I dismiss it. Direction for adjournment of a case management summons dated 30.4.2010 9.The Plaintiff submits that there seems to be only oversight by the parties to DCCJ 333/2010 and also Master B. Mak during the hearing dated 18.11.2010 that the direction for Adjournment of Case Management Summons was not sought by the parties; nor was it granted by Master B. Mak which needs to be corrected; hence Court’s direction is being sought. If that is the situation, then Master B. Mak has been seized with the matter. The Plaintiff should go back before Master B. Mak, and invite him to deal with the matter. This Court has no jurisdiction to adjudicate a matter not dealt with by a master. This Court only has the power to deal with an appeal on a decision made by him. The Appeal 10.The Plaintiff appeals against the order of costs dated 18.11.2010 in favour of the 2nd Defendant in respect of the hearing on 18.11.2010, in the sum of $15,000. The Plaintiff says that the order is to be quashed and appropriately decided upon as to the extent and justification of the cost. 11.On 6.8.2010 the 2nd Defendant took out an application to the Court for an order that the Statement of Claim filed on 21.7.2010 be struck out under Order 18, rule 19(1)(a), Rules of the District Court, on the ground that it disclosed no reasonable cause of action against the 2nd Defendant, and that the Plaintiff’s action against the 2nd Defendant be dismissed with costs. 12.In the Statement of Claim, no reference was made to the 2nd Defendant. This is fatal to the Plaintiff’s claim. Where there is no such reference, any wrong doing pleaded in the Statement of Claim is not related to the 2nd Defendant, because there is no nexus between the alleged wrong doings and the 2nd Defendant. Hence the Statement of Claim against the 2nd Defendant is liable to be struck out. If not for the Plaintiff’s re-amendment of the Statement of Claim, the 2nd Defendant should have succeeded in its application for striking out. Thus, in allowing the Plaintiff’s re-amendment, the proper cost order should be costs of and occasioned by such amendment be to the 2nd Defendant. Therefore the order made by Master B. Mak that the Plaintiff was to pay costs to the 2nd Defendant is a proper order. 13.The Plaintiff set out the grounds of objection in his revised statement of objections. He objects to the rates of charges made by the 2nd Defendant: -
The Plaintiff submits that 8 hours normal duty of handling solicitor at $2,600 equals $520,000 per month, based on 25 days working during normal month; an employee solicitor, with an experience of 12 completed years of experience, should reasonably be eligible for say $100,000 per month which equals $500 per hour; he should also be eligible for overheads since handling solicitor has his own office: $500 per hour. He argues that the rate of the handling solicitor is excessive and propose $1,000 per hour ($500 – own hourly eligibility + overheads $500 per hour). 14.The Plaintiff’s submission is based on the assumption that for each month a handling solicitor works 25 days, working 8 hours per day, and for each hour he charges $2,600. He only charges $2,600 per hour when he works in court or handles a litigation case. There is no evidence to show that he works 8 hours in court every day for 25 days per month. He may only have a few days’ attendance in court every month. So it is wrong for the Plaintiff to arrive at the figure of $520,000 per month. For a solicitor having 12 years of experience, a charge of $2,600 is a reasonable fee. 15.The Plaintiff submits that the hourly rate for the assistant solicitor (year of admission 2003) set at hourly rate of $2,000 is excessive. He proposes $250 per hour. His objection is that 8 hours normal duty of an assistant solicitor at $2,000 equals $400,000 per month, based on 25 days working during normal month. An employee solicitor having only 7 years of experience should be eligible for $50,000 per month, which equals $250 per hour. His assumption that an assistant solicitor charges $2,000 per hour for every working day (8 hours duty per day) is wrong. There is no evidence to show that the assistant solicitor works 8 hours in court every day for each month. The assistant solicitor does not have court work every day. Even if there is court work, the assistant solicitor may not do court work for 8 hours a day. So the assistant solicitor does not have $400,000 income per month. For an assistant solicitor of 7 years’ experience, an hourly rate of $2000 is reasonable. Manual work 16.The Plaintiff submits that the 2nd Defendant imposes a photocopy charge of $700 for “around 700 pages”. The photocopy charge is $1 per page. The charge imposed is $700. He has not shown to me that the exact number of pages is less than 700 pages. So the charge is correct. Attendance by litigation clerk 17.The attendance by litigation clerk is 3 times and the charge is $300. He submits that 8 hours’ normal duty of a clerk at $100 equals $20,000 per month, based on 25 days working during normal month. Normally litigation clerks should be available at $10,000 per month being non-technical in nature which equals $50 per hour. So the rate of litigation clerk is excessive and he proposed $50 per hour, with quantum of 2 hours being reasonable. He proposed $100 for attendance by litigation clerk. In my judgment each time for the litigation clerk to come to court and to go back to solicitors’ office involves at least 1 hour travelling. Attendance for 3 times involves at least 3 hours. $100 per trip is more than reasonable. Communication including conferences, telephone calls and letters 18.The Plaintiff sets out the matters particulars of the charges made by the 2nd Defendant relating to communication: -
He submits that the attendance on client is excessive. He suggests 0.25 hour. The 2nd Defendant’s solicitor had to take instructions from the 2nd Defendant to tackle the situation, and to discuss related matters. It is simply inconceivable that all these matters would take not more than 15 minutes’ time. 19.For “attendance on other side”, the Plaintiff submits that there is no attendance given to him. I am not in a position to say whether this is correct or not as I do not have evidence to decide one way or the other. 20.Regarding “additional attendance to the letters of Plaintiff”. The Plaintiff submits that the quantum is 0 hour. He submits that “the correspondence between the Plaintiff and the Defendants’ Solicitor arose because of his own default to follow the Practice Directions, Rules of District Court, etc. and then acted upon the Plaintiff’s request, rectifying his own defaults, see III above”. III contains “relevant correspondence/letters in connection with the Master’s Order”. There are 6 items (from 3.1 to 3.6) of documents. The Plaintiff did not identify what “fault” the 2nd Defendant’s solicitor committed, in not following the Practice Directions, Rules of District Court. So the submission has no substantive merit. The Plaintiff did attend to the Letters of the Plaintiff for 1 hour. 21.The professional work of the 2nd Defendant objected to by the Plaintiff is as follows: -
The Plaintiff submits that items D1 and D2 are excessive. He suggests 1 hour and 2 hours respectively. The 2nd Defendant’s solicitors are in the best position to state the actual time spent on items D1 and D2. I trust their integrity in this respect. I would not disturb the time spent as stated. He accepted the additional work done under item D3. But he submitts that the quantum is 0 hour. He argues that these arose because of Defendants’ solicitors own default as referred to in the preceding paragraph. As stated before, I am not sure what “the default” is. The Plaintiff did not dispute that there is additional work done for preparing hearing bundles and supplemental bundles. So the quantum cannot be “0”. I accept 1 hour’s work for such preparation. Under item D4, the Plaintiff only disputed the hourly rate. He submitted that the fee for the attendance by assistant solicitor at call-over should be $125, and for the 2.5 hours of substantive hearing the fee should be $1,500. I do not accept such figures. These suggested figures are absurdly low figures. 22.The travelling expenses and postal expenses objected to by the Plaintiff are as follows: -
The Plaintiff raises his objection because that no details have been given for such expenses. The quantum is excessive because “being to and from Solicitors’ office in Central and District Court, Wanchai HKD50 and Portal expenses at actual HKD10”. He suggests a total of $60 for these 2 items. There is no indication of what transport the 2nd Defendant’s solicitor took. If he/she took a taxi, the fee for one single journey is $20 odd to $30 odd, depending on the traffic conditions at the material time. Double trip would mean $40 odd to $60 odd. It is not excessive to claim $100. I do not know how many stamps the Defendants’ solicitors used. It is not excessive to claim $50 for these 2 items. 23.The total amount claimed by the 2nd Defendant is $25,315. Master B. Mak summarily assessed the costs to be $15,000. It is an award reasonably made. 24.The Plaintiff submits that the Court should let the parties reach agreement on the costs, without resort to summary taxation of costs by the Court. The Court has the power to decide the amount of cost summarily. I cannot see anything wrong for Master B. Mak to have done this. His decision by way of summary assessment on the amount of cost is reasonable. Hence I dismiss the Plaintiff’s appeal. I also dismiss the summons. Costs 25.I make an order nisi for costs, to be made absolute in 14 days’ time, that the Plaintiff do pay costs of the applications in respect of the summons and the appeal, to be taxed, if not agreed. No certificate for Counsel.
The Plaintiff: present, unrepresented The 1st and 2nd Defendant : represented by Mr. Poon Siu Bunn, instructed by M/S. S.H. Chou & Co., Solicitors | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Further hearings and rulings under DCCJ 333/2010