Case Detail

HCA001624A/1995

1995, No.A1624

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN
	TAM CHUN CHING, DENIS	Plaintiff (Respondent)

	AND

	BUILDING AUTHORITY	Defendant (Appellant)

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Coram: Hon Gall, J. in Chambers

Date of hearing: 23 May 1997

Date of judgment: 16 July 1997

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J U D G M E N T

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1. The appellant, who was the defendant in the court below, appeals an order made by Master Cannon on 25^th March 1997, ordering firstly, objections 1 to 5 to the taxation of the defendant's bill of costs dated 14^th May 1996 by Master Cannon made on 10^th January 1997, be dismissed and secondly, costs of the review be to the plaintiff (paying party), to be taxed if not agreed. The plaintiff filed a Writ of Summons with the general endorsement against the Building Authority on 22^nd February 1995. The plaintiff sought, inter alia, a declaration that the Closure Order in respect of House No.26, Shek O Village, Shek O, Lot No.1489, Hong Kong was of no force or effect and an injunction restraining the defendant from executing the Closure Order.

2. The plaintiff issued a summons under O.29, r.1 of the Rules of Supreme Court on the same day applying for a stay of execution of the Closure Order.

3. The summons filed on 22^nd February 1995 was heard before the then Deputy Judge Yeung on 24^th February 1995. The plaintiff was represented by counsel and the defendant represented by Mr Anthony Wu, Principal Crown Counsel of the Attorney General's Chambers who appears at this hearing and who appears at all hearings in respect of this application. At the hearing, Deputy Judge Yeung indicated that he would need further evidence from the plaintiff before he ruled on the application. The hearing was adjourned to 3^rd March 1995.

4. On 3^rd March 1995, Mr Yeung Ming Yip of Messrs Daniel Lam & Co. filed an affirmation explaining to the court that an application of legal aid had been made by the plaintiff. The case was before the then Deputy Judge Wesley Wong on 3^rd March 1995. The plaintiff was represented by counsel. It was further adjourned to 10^th March 1995 since counsel and solicitors for the plaintiff withdrew from the case on the date of hearing and the plaintiff had no legal representation.

5. The case was heard again before Deputy Judge Wong on 10th March 1995 and the plaintiff was represented by counsel.

6. On 14th March 1995, judgment was delivered and the delivery of judgment was attended by counsel for the plaintiff and Mr Wu of the defendant. The application for stay of execution was dismissed with costs, to be taxed if not agreed.

7. The defendant's Bill of costs was taxed before Master Cannon on 29^th July 1996. The defendant claimed in its Bill brief fee for Mr Wu in respect of the hearing on 24^th February 1995 and refreshers for Mr Wu in respect of the hearings on 3^rd, 10^th and 14^th March 1995, being Items 3, 12, 22 and 28 of the Bill. These items were disallowed by Master Cannon who instead allowed fees charged at an hourly rate.

8. An application for review of taxation on those four items was filed by the defendant, the appellant herein, on 23^rd January 1997. The review was heard before Master Cannon on 12^th February 1997 and was dismissed with costs.

9. This appeal is against that dismissal.

10. It was argued before me, and I accept, that a Government lawyer is a legal officer under the Legal Officers Ordinance, Cap.87, s.2(2) of the Legal Officers (Fees and Costs) Rules, Cap.87 states to :

"For the purpose of the Rules of Supreme Court (Cap.4 sub. Leg.), and in the application of any other legislative provision as to fees and costs or the practice relating thereto, a legal officer shall be deemed to have the status of a barrister and solicitor duly admitted under the Legal Practitioners Ordinance (Cap.159)

Provided that, in consideration of an item which in a bill rendered by or against a private party would -
(a) consist of costs allowable to a solicitor solely in relation to employment of counsel; or
(b) consist of fees payable to counsel solely in relation to his instruction by a solicitor; or
(c) involve remuneration to both solicitor and counsel in respect of the same event,

the Registrar upon taxation shall be informed and shall take into consideration whether one or more legal officers were engaged upon preparation or upon hearing of the case."

11. The appellant herein argues that since under the Code of Conduct of the Bar, which came into effect on 2^nd January 1996, the attendance upon counsel of solicitors or their representatives in court is dispensed with and since s.2(2) of the Legal Officers (Fees and Costs) Rules relates only to a situation where there is both the solicitor and the counsel to hold that where a legal officer who is performing the role of counsel is acting in the capacity of a solicitor would be to produce an absurd result.

12. There is no doubt that if one Government lawyer performs of the preparatory work in respect of a matter to go before the court and then a second performs the entirely distinct and a separate role as counsel that the first would be chargeable in a Bill of costs at the rate for a solicitor and that the latter could charge both at brief fee and the refreshers normally attributable to a barrister in private practice.

13. Strictly speaking, a brief to a barrister includes all the documents supplied to counsel, such as the copies of pleadings, affidavits, correspondence and documents of that nature. But in a more technical sense, the brief is that document which is drawn up by the solicitor in the form of a narrative or explanatory comment on the case with proofs of evidence of the witnesses attached to it. The brief is the authority of the barrister to appear for the client. The fee chargeable on that brief by the barrister includes the reading of all the necessary documents attached to the brief together with the other preparatory work necessary for trial.

14. The argument advanced by the plaintiff, who is the respondent herein, is that where the same person in the role of solicitor prepares a brief for the use by a barrister, he must so acquaint himself with the nature of the action on the documents that if the same person acts as a barrister, he would not, in practical terms, need to perform much of the work normally carried out by a barrister upon receipt of a brief and in preparation of the matter for trial.

15. In those circumstances, argues the respondent, to charge on the basis of a brief fee and refreshers, where the same person is both solicitor and barrister, is to claim on behalf of the barrister work which need not be done. It goes without saying that there is no middle ground between the costs charged in respect of solicitor's work and the brief fee and refreshers charged by a barrister. Either the barrister should be entitled to such fee as is normally paid in the private sector upon a brief of this nature for a counsel of the stature of the lawyer who appeared in court or the matter should be charged in the peculiar circumstances where the man is both a barrister and solicitor as if it were a solicitor who carried the matter through from the beginning to the end.

16. I accept that under the Legal Officers Ordinance, a legal officer has a right of appearance in all courts in this territory. I hold therefore that in the circumstances where the same person acts as a solicitor in the preparation of a matter for trial in the Attorney General's Chambers and then proceeds to act as an applicant in the court in response to the instructions that he has prepared as a solicitor, Master Cannon was right in disallowing the brief fee and refreshers and replacing them with a proper measure of preparation as a solicitor and the proper measure of costs applicable for the attendance in court by a solicitor.

17. This appeal is dismissed. The costs of this appeal for the respondent.

(T.M. Gall)
Judge of the High Court

Representation:

Mr W.S. Clarke of M/s Clarke & Liu, for Plaintiff/ Respondent

Mr Anthony Wu (AGC), for Defendant/Appellant

ACTION NO 1624 OF 1995

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H E A D N O T E

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Plaintiff came into possession as tenant after the date of Closure Order. He challenged the validity of the Closure Order.

Held:	1) The plaintiff has no locus standi as he was not a person interested or affected by the Closure Order.

	2) The address of the Closure Order was neither equivocal nor ambiguous and is therefore valid.

ACTION NO 1624 OF 1995

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN
	TAM CHUN CHUNG DENIS	Plaintiff

	AND

	BUILDING AUTHORITY	Defendant

___________

Coram: W WONG, DJ

Dates of hearing: 24 February and 3, 10 March 1995

Date of delivery of ruling: 14 March 1995

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R U L I N G

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1. On 22 February 1995, the plaintiff filed the endorsement of claim for a declaration that the Closure Order in respect of House No. 26, Shek O Village, Shek O, Lot No. 1489, (hereinafter called `the Closure Order') is of no force or effect and an injunction to restrain the defendant from taking any steps in respect of the execution of the Closure Order.

2. On the same date, the plaintiff took out an interparte summons returnable on 24 February 1995 for an injunction to restrain the defendant from taking any steps to execute the Closure Order. The wording of the summons is somewhat strange. It did not ask for the defendant to be restrained until the conclusion of the action or further order.

3. On the return date, the matter came before Deputy Judge YEUNG who adjourned the matter to 3 March 1995 after consultation with plaintiff's then counsel. On 3 March 1995 the matter came before me. Another counsel appeared for the plaintiff. He came to ask for adjournment as the plaintiff had applied for legal aid. No memorandum from the Legal Aid Department had been filed.

4. Since the plaintiff's then solicitors had instructed counsel to appear, I pressed counsel to go ahead with the application for injunction. Counsel submitted that he was not prepared as he had been instructed quite late the day before and that he was only instructed to apply for adjournment as the plaintiff had applied for legal aid.

5. I find that sort of submission very unsatisfactory in that if the plaintiff had applied for legal aid, that means the solicitors' services were no longer required. Since solicitors had been retained, they knew or ought to have known that it was a resumed hearing in respect of the application for injunction. So it must be a matter of some urgency and should be proceeded with diligence. It lies ill in the mouths of counsel and solicitors to say that the instructions were for adjournment only. If it were so, why cannot the plaintiff come to apply for the adjournment himself?

6. Obviously, counsel had not read the papers and did not know what the case was about and had to apply to withdraw from acting for the plaintiff. This is very unsatisfactory. If counsel felt that he did not have time to go through the papers, he should not have taken up the case. Time and again, Courts have expressed displeasure with counsel coming to court saying that his instructions were limited to apply for adjournment.

7. Upon counsel withdrawing from the case, I asked the plaintiff's then solicitor to take up and continue with the case. He had been taking instructions and had prepared the case, so he should be in a position to proceed without difficulty. However, he, like the counsel he instructed, was not able to go on and had to apply for discharge.

8. I was, therefore, left with the plaintiff having no legal representation. It would be unfair to ask the plaintiff to conduct his case personally after he had instructed solicitors to act for him. In the circumstances, I had, with greatest reluctance, adjourned the matter for seven days to enable the plaintiff to get legal representation even though in view of the history leading to the present application which I hereinafter set out, I have greatest suspicion that the plaintiff was trying his best to delay the matter.

History Leading to the Present Action

9. Sometime in August l989, Business Right Ltd (hereinafter called `the owner') applied to the Building Authority to build a new village type house in the site situated at Shek O, Lot No. 1489 which contained two units of a 2-storey village type house which had fallen into dis-repair. The application was rejected but the owner pressed on regardless and built a small 3-storey domestic building which was completed towards the end of 1990.

10. Upon being discovered, the Building Authority on 30 January 1991 served Order No. C0172/91/HK and asked the owner to remedy the situation. Nothing was done either by the owner or the Building Authority until 21 November 1991 when the Building Authority, pursuant to section 27 of the Building Ordinance, gave Notice of Intention to apply for a Closure Order. To this Notice, the owner appealed to the Appeal Tribunal and the Tribunal dismissed the Appeal on 28 August 1992.

11. On 8 October 1992, the Building Authority issued another Notice of Intention to apply for a Closure Order. The owner appealed again. The Building Authority withheld the application for a Closure Order pending the decision of the Appeal Tribunal. The Tribunal held a hearing on 12 February 1993 and dismissed the Appeal on 22 February 1993.

12. On 16 August 1993, the Building Authority wrote to the owner to inform it that the Building Authority intended to apply to court on 23 September 1993 for a Closure Order pursuant to the notice dated 8 October 1992.

13. District Court Miscellaneous Proceedings No. 940 of 1993 was instituted to deal with the application. The matter was heard before His Honour Judge Downey, as he then was, and judgment was given in favour of the Building Authority. The owner then appealed against the decision and on 19 May 1994 the Court of Appeal dismissed the owner's appeal. The owner then applied for leave to take the matter to the Privy Council but leave was refused. The owner then petitioned for special leave to appeal to Privy Council and the Privy Council dismissed the petition on 17 October 1994.

14. On 19 January 1995 the plaintiff received a letter from the Building Authority addressed to the landlord that the house in question, that is house No. 26, Shek O, Lot No. 1489, would be closed for demolition and on 20 February 1995 the plaintiff received a copy letter from Messrs William Clarke & Co for the owner addressed to the Building Authority saying that the Closure Order is flawed in that it referred to house No. 26 Shek O whereas the owner's properties are house No. 208 and house No. 210. It is on this basis that the present application was made.

The plaintiff's case

15. Mr Pow, counsel now for the plaintiff, submitted that under section 27, sub-section 4A of the Building Ordinance, a Closure Order shall specify the building to be closed. He adopted Messrs William Clarke & Co's argument that the defendant had named a building not in existence and there was no evidence to clarify the matter. So he said there is an issue to be tried and has an arguable case.

Whether the plaintiff has locus standi

16. Mr Pow informed this court that the plaintiff became tenant in January 1994, a matter which is material but was not disclosed in the plaintiff's own affirmation in support of this application for injunction. The Notice of Intention to apply for a Closure Order on 8 October 1992 was made under section 27, sub-section 2A, which states:

"Not less than 7 days' notice of intention to apply for a Closure Order shall be given by the person making such application by posting a copy of such notice upon a conspicuous part of the building to be affected, and upon being so posted such notice shall be deemed to be notice to all persons of such intention".

17. The closure order was dated 23 September 1993. That being the case, the plaintiff was not an occupant either at the time of the Notice of Intention to apply for a Closure Order or when the Closure Order was made. He became a tenant only in January 1994 at the time when the house had already been closed under a Court Order. In my judgment, he has no locus standi because he was, firstly, in contravention of the law and, secondly, he was not the person interested or affected by the notice when the Notice of Intention to apply for Closure Order was given, nor was he a person interested or affected when the Closure Order was made.

Has the plaintiff made out a case

18. From the letter of the solicitors for the owner, Messrs Robert W H Wang & Co, dated 9 December 1991, on appeal to the Appeal Tribunal in respect of the first Notice of Intention dated 21 November 1991, it stated at paragraph 5A that:

"The captioned lot is a building site and did previously contain two units (Nos. 208 and 210) of a 2-storey `village type' house which had fallen into disrepair".

19. Then at paragraph 5K that:

"A small 3-storey domestic building was then erected on the site and completed towards the end of l990".

20. What happened is that the house with two units was demolished and a new house was erected. There was no suggestion whatsoever that two houses had been erected.

21. Then Mr P J Sheehan, a consultant solicitor with Messrs S H Leung & Co in DCMP 940 of 1993, sworn an affidavit on 16 October 1993 and said that:

"On 30 November 1991 the applicant issued Order No. CO172/91/HK requiring demolition of the premises known as house No. 26, Shek O village, Hong Kong (also known as house Nos. 208 and 210, Shek O Village) and identified in Land Registry records as Shek O, Lot No. 1489, which is owned by the respondent".

22. Mr Pow conceded that the house, subject matter of the Closure Order, was erected on Shek O, Lot No. 1489. With that concession by the plaintiff's counsel and admissions by the owner, in my judgment, the Closure Order was unequivocal, unambiguous and had specified the building to be closed and section 27, sub-section 4A of the Building Ordinance had been complied with. The plaintiff, therefore, has no arguable case.

Owner's conduct

23. By DCMP 940 of 1993 the owner had exhausted all venues in respect of the Closure Order. The judgment from the Court of Appeal is final. It would be wrong for it to instruct Messrs. William Clarke & Co to write to the Building Authority on 20 February 1995 to say that the Closure Order was fatally flawed. This is a matter which the owner could have brought up in that proceeding but it had chosen not to do so. This is sufficient to shut out that subject of litigation in any subsequent action. Had the owner taken out this action, it would have been barred by the doctrine of res judicata, see Yat Tung Investment Co Ltd and Dao Heng Bank and another 1975 [AC] 58l.

24. I cannot say that the doctrine of res judicata can apply to this action since the party is different, but the owner by sending a copy of his letter to the plaintiff, the plaintiff had been misled into believing that he had an arguable case. If the plaintiff were aggrieved and had suffered damage as a result of the Closure Order, in my judgment, the proper course is to go after the owner who should never have let the house or any part thereof which had been under a Closure Order to the plaintiff.

25. I am aware that by dismissing the summons, I am in effect disposing of the action, but the argument put forward by counsel for plaintiff is so devoid of merits that the only proper order in the circumstances is to have the summons dismissed.

26. For those reasons, the summons is dismissed with costs.

(WESLEY WONG)
Deputy Judge of the High Court

Representation:

Mr Jason W N Pow (instructed by Haldanes) for plaintiff

Mr Anthony WU, AG for Crown, for defendant

TAM CHUN CHING, DENIS v. BUILDING AUTHORITY

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