Re Wing Fai Construction Co Ltd

FAMV No. 33 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2008 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 244 OF 2004)

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BETWEEN

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FACV No. 30 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 30 OF 2008 (CIVIL)

(ON APPEAL FROM CACV NO. 244 OF 2004)

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BETWEEN

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D E C I S I O N

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Mr Justice Chan PJ:

1.On 12 October 2012, I allowed in part the Liquidator’s appeal against the Registrar’s taxation and made an order nisi that the Liquidator be awarded 70% of his costs of the appeal to be taxed on an indemnity basis (“the Appeal Costs”). No submission having been received from the parties, this order became absolute.

2.By way of letter dated 26 October 2012, the Liquidator’s solicitors sought the following orders:

(1)  That the Appeal Costs be taxed on a gross sum basis;

(2)   That the Registrar’s order for costs in favour of the respondent be set aside and that the Liquidator be awarded also 70% of his costs of the review before the Registrar; and

(3)   That the costs of the review before the Registrar be taxed on a gross sum basis.

3.On 30 October 2012, the Court received a letter dated 29 October 2012 from solicitors for the respondent who submitted that they had no objection to the gross sum taxation of the Appeal Costs and the Review Costs but raised objection to some individual items in the Liquidator’s Statements of costs, submitting that they were unreasonable. On the same day, the Court informed the parties by letter that I have made an order nisi that

(i)   the Appeal Costs be taxed on a gross sum basis;

(ii)   the Registrar’s order for costs of the review be set aside and the Liquidator be awarded 50% of his costs (“the Review Costs”);

(iii)   the Review Costs be taxed on a gross sum basis.

4.No further submission was received from the parties. The order nisi in the preceding paragraph became absolute. 

5.This is my ruling on the respondent’s objections on the Liquidator’s two Statements of costs. Since this is a gross sum taxation, I would not state any figure but only the brief reasons for accepting or rejecting these objections, bearing in mind this is an indemnity taxation.

Objections on the Appeal Costs

(1)   C1 and C2 for Attendance on client. I agree that it was unreasonable for two solicitors to spend 55 minutes and 365 minutes respectively attending client to explain to him matters relating to the appeal on taxation.

(2)   D1 to D3 for Preparation of documents. I agree that it was unreasonable for three solicitors to spend a total of 41.25 hours on preparing the documents including written and supplemental submissions for this taxation appeal, notwithstanding that this is not an easy appeal involving some legal principles of taxation and lots of documents.

(3)   D4 and D5 for Perusal of documents (including the respondent’s submissions). I do not think the time spent was unreasonable.

(4)   D8 and D9 for Preparation of hearing. I do not think it was unreasonable to have ERJ who was apparently more hands on with the case to assist in the preparation of the hearing.

(5)   D10 and D11 for Attending hearing. As in (4) above, I do not think it was unreasonable for ERJ to attend the hearing.

Objections on the Review Costs

(1)   D1 and D2 for Preparation of list of Objections and revised list of Objections and submissions. I agree that it was unreasonable for ERJ to spend more than 8 hours in addition to the 6.4 hours spent by JW in preparing the list and revised list of objections.

(2)   D8 for attending hearing on 15 June 2011. I do not think it was not necessary for ERJ to attend the hearing after the disposal of the legal issues by the Registrar. His attendance would be required in case there might be any problem in the application of the relevant principles on the facts of this case.

Gross Sum assessment of the Appeal Costs

6.Taking into consideration the above ruling on the objections, the gross sum allowed on the Appeal Costs is $185,000.

Gross Sum assessment of the Review Costs

7.Taking into consideration the above ruling on the objections, the gross sum allowed on the Review Costs is $70,000.