Full Harvest Properties Co Ltd v. Cheung Sau Kuen

HCSA 56/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 56 OF 2012

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM
NO. 030337 OF 2011)

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J U D G M E N T

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1.This is the defendant’s application for leave to appeal against a costs award made in her favour by the Small Claims Tribunal in SCTC 30337/11 (“Claim 1”).

2.Claim 1 was one of three claims heard at the same time in the Tribunal below.  The other two were SCTC 30475/11 (“Claim 2”) and SCTC 46460/11 (“Claim 3”).  These claims arose out of an aborted property rental transaction. 

3.By a temporary rental agreement dated 1 July 2011 (Agreement”), the defendant agreed to rent a flat in Whampoa Garden.  She subsequently reneged on the Agreement which resulted in three claims being made in the Tribunal below.  In Claim 1, the defendant was sued by the landlords’ estate agent for outstanding commission.  In Claim 2, the defendant claimed against one of the landlords for alleged breach of promise to return part of the initial deposit paid by her under the Agreement.  In Claim 3, the defendant was sued by her own estate agent for unpaid commission.

4.After trial, Claim 1 and 2 were as dismissed and Claim 3 was upheld.  The results reflect the finding of the Tribunal that there was no justification for the defendant’s failure to honour the Agreement. Claim 1 was dismissed by reason of a legal technicality, namely, the absence of an agreement between the agent and the defendant in compliance with section 45(1) of the Estate Agents Ordinance, Cap 511. 

5.As the successful party in Claim 1, the defendant made a claim for “costs” in the total sum of HK$38,438.80 which comprised of the following:

(a) Loss of income of the defendant and her husband (who was a witness at the hearing below) – HK$35,906;

(b) Stamp duty – HK$1,268;

(c) Costs previously ordered against the defendant – HK$1,000;

(d) Costs of issuing Claim 2 – HK$160; and

(e) Postage – HK$104.80

6.In examining the constituents of the “costs” claim, the learned Adjudicator held that there was no proof that the defendant or her husband had to apply for leave to attend the hearing.  It was further held that stamp duty should not form part of a costs claim and that items (c) and (d) should also be excluded in the costs application under Claim 1.

7.The Adjudicator then went on to consider the exercise of discretion for the costs award.  He took the view that the defendant had lost on both Claim 2 and 3.  Her victory in Claim 1 was a matter of technicality.  The defendant and her husband were found to be untruthful and unreliable witnesses.  In those circumstances, the Adjudicator only awarded part of the postage in the sum of HK$79.60 to the defendant, together with interest thereon.

8.Under section 28(1)(a) of the Small Claims Tribunal Ordinance, Cap 338 (“Ordinance”), a decision of the Tribunal can only be appealed on a ground of law. 

9.There are two grounds advanced by the defendant in her application.  Firstly, she has now produced to this court evidence said to be in support of the claim for lost income.  Secondly, it is said that no reason was given by the Adjudicator for the rejection of the rest of her claims.

10.In respect of the fresh evidence, it is trite law that evidence which could have been but not produced at the trial should not normally be admitted for purpose of appeal.  Finality is an important element of fairness.  I am unable to see any reason why an exception should be made here.  I note the defendant’s submission that she and her husband were employed and they could not have taken time off from work without applying for leave.  However, it appears from the Adjudicator’s Reasons for Award that he was not prepared to accept an unsupported claim of the defendant given his finding as to her and her husband’s credibility. 

11.As regards the second ground, it is plainly a misconception given the reasons of the Adjudicator as I have stated above. 

12.For completeness, it is also trite law that costs are awarded on an exercise of discretion and such a decision is not lightly disturbed.

13.I am unable to see any merits in this application.  There is no point of law which justifies an appeal in these matters.  This application is accordingly dismissed. 

The defendant (appellant) appeared in person