Baker & Mckenzie (A Firm) v. The Grande Holdings Ltd and Others
Read the full judgment text of HCMP 1971/2010 on BabelCite. This High Court CFI judgment was delivered on 7 June 2011.
1. On 17 May 2011, I gave an order for the Plaintiff’s bills to be taxed and dismissed the Defendants’ summons for directions to convert the originating summons into a writ action (“the Order”).
Cited by 2 cases · Cites 4 cases
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HCMP1971/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 1971 OF 2010 ---------------------------
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---------------------- Before : Deputy High Court Judge Au-Yeung in Court Date of Hearing : 7 June 2011 Date of Handing Down Judgment : 7 June 2011 ------------------------------------------------ REASONS FOR DECISION ------------------------------------------------ 1.On 17 May 2011, I gave an order for the Plaintiff’s bills to be taxed and dismissed the Defendants’ summons for directions to convert the originating summons into a writ action (“the Order”). 2.This application is by the Defendants for, insofar as is necessary, leave to appeal from the Order. In the supporting affirmation, the Defendants’ solicitor stated that notwithstanding the Defendants’ belief that leave to appeal was not required, to adopt a prudent approach, the Defendants sought leave. 3.The application is opposed by the Plaintiff who says that the Order was to give case management directions. 4.Order 59, rule 21(1) (a) provides that leave is not required and accordingly an appeal lies as of right from a judgment or order determining in a summary way the substantive rights of a party to an action. 5.Without affecting the generality of paragraph (1)(a), Rule 21(2) gives summary judgment under Order 14 as an example of a judgment determining in a summary way the substantive rights of a party. 6.Mr Beresford, counsel for the Plaintiff, refers to the “application test” for the determination of whether leave to appeal is required.
7.The originating summons sought for orders (i) for the bills to be taxed by a taxing master; (ii) for interim payment of 50% of the billed amount; and (iii) for payment of the balance of 50% of the billed amount into court. The Order granted the Plaintiff the reliefs under (i) and (ii) but dismissed (iii). It also dismissed the Defendants’ summons for directions. Accordingly, the Order has disposed of the substantive rights of the parties as prayed for under the originating summons. 8.The Order was not given in the sake of case management because the issue of liability of the Defendants to pay the bills has been finally determined. The taxing master will have no power to overturn that determination at the taxation or make decisions on liability inconsistent with the Order. His/her power will be limited to taxing the bill and ascertaining the quantum to be paid by the Defendants. Applying the “application test”, my conclusion is no different. 9.I hold that the Defendant has a right to appeal against my Order and no leave is required. Assuming that leave is required, I will give it. The draft grounds of appeal put forth are reasonable and more than fanciful: SMSE v. KL [2009] 4 HKLRD 125. 10.Mr Beresford submits that the intended appeal is based on a claim of negligence against the Plaintiff and that cause belongs to D1 (which is now under liquidation and proceedings against it have been stayed) but not other Defendants. I do not need to express a view on whether those Defendants have grounds to appeal. Suffice to say that a right to appeal will not be lost merely because a party does not put forth grounds or meritorious grounds before me now. 11.The Defendants would not have asked for costs but for the opposition of the Plaintiff to the Summons. Having failed in its opposition, costs should thus be borne by the Plaintiff with certificate for one counsel. 12.It was not necessary to prepare a new document bundle for use today. Attendance by litigation clerk was beyond the appropriate scale fee. Solicitors’ costs were clearly excessive given counsel’s heavy involvement. 13.I summarily assess costs at $160,000. 14.To sum up, no order is made under paragraph 1 of the Summons. Costs of $160,000 are to be borne by the Plaintiff. 15.I thank counsel for their assistance.
Mr. Roger Beresford instructed by Messrs. Baker & McKenzie for the Plaintiff Mr. Edward Chan SC leading Mr. Liu Man Kin instructed by Messrs. Wong & Fok for the 2nd to 11th Defendants Messrs Wilkinson & Grist for the 1st Defendant absent | ||||||||||||||||||||||||||||||||||||||||||||||||||
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