Chan Pak Man v. Chan Pang Fee and Another
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CACV000147A/1980
----------------- Coram: Sir Alan Huggins, V.-P., Leonard, V.-P., and Baber, J. Date of Judgment: 11th December 1981. ----------------- JUDGMENT ----------------- Sir Alan Huggins, V.-P. : 1. The parties come before the Court on the matter of costs. We made a provisional order that the appeal and the cross-appeal should be allowed with costs. In the event we think that that was the proper order, but I will deal with the matter in somewhat more detail. 2. The first suggestion which has been made is that the son should not be entitled to his costs against both the father and the purchaser. It was said that the father was not interested in the main issue. In fact he was interested: he said that the estate was bound, or ought to be bound in the discretion of the court. He chose actively to support the purchaser and he failed. It was the father who brought in the son, as of course he had to: the son was not party to the action for specific performance but he had to be party where it was sought to introduce the discretion of the Court. In my view, both Respondents must be liable to the son and there is no reason why the costs below should not also follow the event. For my part I think that O.62 r.6(2) does not apply. This was not a case, in my view, where either of the parties was in a representative capacity, but, if I be wrong as to that, I am clearly of opinion that this is a case where the Court should order otherwise than is provided for by that paragraph, as it is empowered to do. 3. Turning then to the costs as between the father and the purchaser, it seems to me that the father's costs on the main issue should be borne by him here and below. What he is entitled to, and what he has already got, is an order for payment of the costs of the cross-appeal and of that issue in the court below. The new matter which has been introduced today is the question of an order for costs in favour of the purchaser against the solicitors, K.Y. Woo & Co. It is said that the solicitors have been negligent to such a degree that they have occasioned this litigation and should be made to pay the costs of the purchaser. I fail to understand this argument. It seems to me that there was no breach of any duty to the Court or to the purchaser. These solicitors were instructed to obtain Letters of Administration. It may be they were negligent vis-a-vis their client, but it seems to me that they owed no duty to the purchaser and that there must be very grave misconduct before it can be said that a solicitor is in breach of his duty to the court. In any event it does not seem to me that the costs have been occasioned by any default there may have been: the costs of this litigation, and the litigation itself, were occasioned by the form in which the agreement was drafted, and that was not the fault of these solicitors. Therefore I see no ground upon which any costs should be awarded against them. 4. It has been pointed out to us that there was an omission during one of the hearings before the court below to deal with the costs of an application which came before Mr. Registrar Blackwell on 16th April. The position as I see it is that those costs ought to be treated as part of the costs below for the purposes of the Appellant's order for costs, but I would not make any further order as to the costs of that hearing. 5. We are left then with the costs of today, and, subject to anything that may be said, I see no reason to make any order for costs other than that the solicitors should have their costs against the purchaser. Leonard, V.-P. : 6. I agree with the orders proposed. For my part, I consider that it is arguable that Order 62 Rule 6 Para. 2 does apply in that the father was sued for specific performance both in his personal capacity and in his capacity as personal representative. However, it is immaterial because I consider that this is a case where the Court should in any event otherwise order. I agree with all the orders proposed by the learned Vice President. Baber, J. : 7. I think Counsel for the 2nd Respondent - the Purchaser is to be congratulated mildly on the vigour and persistence with which he has argued his case, even though his success has been rather limited. I share the view of Mr. Justice Huggins, Vice President of the Court, on the matter of Order 62 Rule 6 paragraph (2) of the Rules of the Supreme Court; and of one thing at least that I am clear and that is that I entirely agree with the orders proposed by the Court and can add nothing further of any use. 11th December 1981. Representation: |