RE GREATER BEIJING REGION EXPRESSWAYS LTD

HCCW 399/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP PROCEEDINGS NO. 399 OF 1999

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J U D G M E N T

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1. This is an application by Mr David Yuk Wah Ho ("Mr Ho") by summons dated 27 October 2003 seeking a review of Master Woolley's decision dated 21 August 2003 on a review of taxation in respect of a bill of costs in respect of the costs of Always Win Development Ltd ("Always Win"). The bill related to Always Win's costs in respect of a number of applications (which I shall describe briefly below) arising out of winding up proceedings against Greater Beijing Region Expressways Limited ("GBRE"), a company involved in toll road projects on the Mainland, of which Mr Ho was a director and an indirect shareholder.

2. By his decision, Master Woolley rejected (save in respect of three minor items) the objections which Mr Ho had raised in respect of this bill. Mr Ho now seeks a review of that decision pursuant to RHC Order 62 rule 35, which provides that:-

"Any party who is dissatisfied with the decision of a taxing master to allow or to disallow any item in whole or in part on review under rule 33 or 34, or with the amount allowed in respect of any item by a taxing master on any such review, may apply to a judge for an order to review the taxation as to that item or part of an item ..."

3. The background to the matter (which I have taken substantially from the judgment of Le Pichon J dated 8 February 2000) may be summarised as follows. On 7 May 1999, a petition seeking the winding up of GBRE on the just and equitable ground was presented by one of its shareholders, Miracle Chance Limited, which complained of the dilution by Mr Ho of its shareholding in GBRE, and also of other transactions which were said to have resulted in Mr Ho and entities connected by him benefitting at the expense of GBRE. Following the presentation of the petition, a number of other shareholders of GBRE indicated that they wished to appear on the hearing of the petition, although they did not (at that stage, at least) indicate whether they supported or opposed it. These included Always Win, which had between November 1997 and February 1998 acquired an 18.97% stake in GBRE for a consideration of over US$80 million. They also included a group of five other shareholders (Asia Pacific Growth Fund II L.P., BeN Offshore Investments Ltd, Fantasia Venture Limited, Onfem Holdings Limited and Quantum Emerging Growth Partners CV ("the Five Shareholders"). On 5 November 1999, while the petition proceedings were still pending, Always Win, the Five Shareholders and another shareholder in GBRE called China Securities (International) Limited ("China Securities"), who together held some 62.2% of the issued share capital of GBRE, passed a resolution for the removal of Mr Ho and his associates as directors of GBRE with effect from 20 November 1999. Mr Ho was apparently notified of this resolution as a matter of courtesy. His response, the same day, was to cause GBRE to allot to a company controlled by him sufficient shares to enable him to defeat this resolution. This allotment of course also had the effect of diluting the shareholdings of Always Win, the Five Shareholders and China Securities.

4. On discovering this allotment, the Five Shareholders applied by Summons dated 23 November 1999 for injunctive relief against GBRE, Mr Ho and other directors associated with him, alternatively for the appointment of a provisional liquidator to GBRE, and for discovery from GBRE, Mr Ho and the other directors associated with him. On being served with the Summons, Always Win decided to appear at the hearing of the Summons (which had been fixed to be heard the next day, 24 November 1999) and support the application. It did so by its own solicitors, Messrs Woo Kwan Lee and Lo, and counsel - Mr Denis Chang, SC and Ms Eliza Yiu, while the Five Shareholders were represented by Messrs Linklaters and Mr Jonathan Harris of counsel (China Securities did not take part in the application). In the event, the applications for injunctive relief and appointment of provisional liquidators were not proceeded with, apparently because it was thought that these might result in an event of default under the terms of a bond issue which had been made by a subsidiary of GBRE, which could result in substantial losses to GBRE, and the Five Shareholders chose not to offer a cross-undertaking in damages. However, revised orders seeking discovery were sought, and Le Pichon J made orders requiring GBRE and its directors to make disclosure and discovery.

5. On 2 December 1999, GBRE and the directors issued summonses seeking the discharge of the disclosure and discovery orders made on 24 November 1999. An interim order was made by Le Pichon J on 3 December 1999, when directions were given for the filing of evidence and fixing dates for the substantive hearing of the applications for discharge. This was eventually heard on 13, 14 and 19 January 2000. As the initial application had been by the Five Shareholders, the order of 24 November 1999 did not require disclosure or discovery to be made to Always Win. Accordingly, on 10 January 2000, Always Win issued its own summons seeking an identical order for disclosure to that which had been made on 24 November 1999 in favour of the Five Shareholders. Always Win's summons was opposed by the Company and its directors, and was heard at the same time as their applications to discharge the 24 November 1999 order. In the event, Le Pichon J dismissed the applications for discharge of the 24 November 1999 order and made an order in favour of Always Win on its summons. Le Pichon J did not deal in her judgment with the costs of the application before her, or of the costs of various earlier hearings (including that on 24 November 1999) which had been reserved. These costs were eventually dealt with by an order of Deputy Judge To dated 21 March 2002, in which it was ordered that Mr Ho should pay the costs of Always Win and the Five Shareholders on a party and party basis. Always Win sought and obtained from Deputy Judge To a certificate for two counsel.

6. Following the making of the costs order, it appears that instructions were given by Always Win for a bill of costs to be drawn up by a law costs draftsman. A draft bill of costs was submitted to Mr Ho's solicitors on 6 September 2002, and the formal bill was issued on 6 November 2002, after which it was taxed and reviewed by Master Woolley.

7. Before me, Mr Ho raises eight objections to Always Win's bill of costs. Seven of these relate to counsels' fees which had been allowed by Master Woolley. The eighth relates to Master Woolley's rejection of a submission that had been made to him that the overall bill as taxed should be the subject of a further global reduction to take account of what was said to be undue delay on the part of Always Win in having its costs taxed.

8. Pursuant to Order 62 rule 35(4):-

"Unless the judge otherwise directs, no further evidence shall be received on the hearing of an application under this rule, and no ground of objection shall be raised which was not raised on the review by the taxing master but, save as aforesaid, on the hearing of any such application the judge may exercise all such powers and discretion as are vested in the taxing master in relation to the subject-matter of the application."

It is therefore open to me to exercise the powers and discretion which vested in Master Woolley afresh, without being fettered by the manner in which he dealt with the matter.

9. I turn now to consider each of the objections raised by Mr Ho, and will deal as necessary with the applicable principles when dealing with each objection.

Objection 1

10. The first objection taken was to the brief fee paid to Mr Chang, SC for the hearing on 24 November 1999. Mr Chang's brief fee was HK$250,000.00. This was reduced by Master Woolley on taxation to HK$200,000.00, an amount which was confirmed upon review. No objection was taken to the brief fee payable to junior counsel, Ms Eliza Yiu, of HK$60,000.00.

11. Mr Thomas, appearing for Mr Ho, submitted that the amount allowed of HK$200,000.00 was grossly excessive, and was therefore neither necessary nor proper for the attainment of justice. As I understood it, this submission was based on the following grounds:-

(1) The total fee allowed in respect of both of Always Win's counsel was HK$260,000.00, which was far in excess of the brief fee of HK$75,000.00 charged by Mr Harris who appeared for the Five Shareholders, and is therefore excessive when the "hypothetical counsel" test (to which I refer below) is applied.

(2) The hearing on 24 November 1999 was a hearing of the Five Shareholders' summons, and Always Win merely supported it. It could therefore have been represented by Mr Harris as well, so that there would have been no need to instruct separate counsel.

(3) Alternatively, either two counsel should not have been instructed for such a supporting role, or counsel of the seniority of Mr Chang should not have been instructed.

(4) In the event, the Five Shareholders did not pursue the injunctive relief and appointment of provisional liquidators, but only the discovery application, so that most of the relief sought by their summons was dropped. This meant that the services of counsel were unnecessary, or at least extremely expensive.

12. It will be noted that in relation to this, and other objections, Mr Thomas' submissions proceeded on the basis that the appropriate test to apply to counsel's fees was that laid down in Order 62 rule 28(2) as being applicable to party and party taxations - namely, whether the costs incurred were "necessary or proper" for the attainment of justice.

13. Mr Thomas submitted that as the taxation was on the party and party basis, only such costs as were necessary or proper should be allowed (see Order 62 rule 28(2)). He reminded me that this is the strictest of the normal bases of taxation, and that taxed costs are not the same as costs reasonably incurred. So far as counsel's fees are concerned, Mr Thomas drew my attention to the provisions of paragraph 2(5) of Part II of the First Schedule to Order 62, which states:-

"Every fee paid to counsel shall be allowed in full on taxation, unless the taxing master is satisfied that the same is excessive and unreasonable, in which event the taxing master shall exercise his discretion having regard to all the relevant circumstances and in particular to the matters set out in paragraph 1(2)."

He also drew my attention to Paragraph 1(2) of Part II of the First Schedule to Order 62 which lists seven particular matters to which a taxing master should have regard to when exercising his discretion under Order 62 rule 32(2). According to the introductory part of that paragraph, it is applicable (inter alia) to taxations under rule 29 as between solicitor and own client, and under rule 31(2) in respect of trustee's or personal representative's costs to be paid out of a fund held by him in that capacity.

14. Mr Thomas submitted that notwithstanding the terms of paragraph 2(5), counsel's fees should be taxed in substantially the same way as any other item in a party and party taxation. He referred to the approach adopted by the English courts in relation to the taxation of counsel's fees, as illustrated by cases such as Simpsons Motor Sales (London) Ltd v Hendon Corporation (No. 2) [1965] 1 WLR 112, where it was stated that the measure of counsel's fees is to be determined by estimating (on the basis of the court's knowledge and experience) the fee to which a hypothetical counsel capable of conducting the case effectively would be content to take on the brief, bearing in mind that such hypothetical counsel does not insist on the particularly high fees sometimes demanded and obtained by "fashionable" counsel. He suggested that this approach had been applied in a number of Hong Kong decisions, such as Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1982] HKLR 387 and Ngan Wun Yeung v Lok Sin Tong Benevolent Society, Kowloon [2000] 2 HKC 404, and was supported by the commentary in the Hong Kong Civil Procedure 2004 (at para 62/App/31).

15. In my view, it is not possible to equate the test to be applied to the taxation of counsel's fees laid down in paragraph 2(5) of Part II of the First Schedule to Order 62 to that applicable to party and party taxations under Order 62 rule 28(2). Paragraph 2(5) of Part II of the First Schedule is a provision that is peculiar to Hong Kong. It did not exist under the equivalent rules applicable in England prior to the Woolf reforms. It has recently been described as "exceptional" by the Chief Justice's Working Party on Civil Justice Reform in its Final Report, since it provides a substantially more generous basis of taxation for counsel's fees in party and party taxations (to which it applies by virtue of rule 32(1)) than for other items in such taxations. The question that is to be asked when considering counsel's fees is whether such fees are "excessive and unreasonable" - if they are not, they are to be allowed in full on taxation. This wording is very different from the test of "necessary or proper" which applies to party and party taxations. It resembles most closely the wording of Order 62 rule 29(1), applicable to the taxation of costs between a solicitor and his own client, where all costs are to be allowed unless they are of an "unreasonable amount" or have been "unreasonably incurred", and which is clearly a more generous basis of taxation than the party and party basis. Further, paragraph 2(5) provides that where the taxing master is satisfied that the fee is "excessive and unreasonable", he should exercise his discretion having regard to all the relevant circumstances and in particular the matters set out in paragraph 1(2) of this Part of the Schedule. Paragraph 1(2) itself states that it is applicable to (inter alia) the exercise by a taxing master of his discretion under rule 32(2), which, as noted above, applies to solicitor and own client and trustee taxations. This is a further indication that a more generous basis than that applicable to a party and party taxation is to be applied to counsel's fees, whatever the basis of taxation.

16. I do not see any particular difficulty in adopting the comparative approach suggested by the Simpsons Motor Sales case in considering whether counsel's fees in a given case are excessive and unreasonable, so long as in doing so, it is remembered that one is doing so on a more generous basis than that applicable to other items in a party and party taxation. I do not regard either of the Hong Kong cases relied upon by Mr Thomas as requiring me to apply any different principle.

17. In the Tai Hing case, the actual issue for consideration was not the level of counsel's fees, but whether or not certain additional items paid to London counsel such as first class airfares, travelling time and hotel expenses should be allowed on a party and party taxation. It does appear from the judgment, however, that Rhind J applied the "necessary or proper" test to the taxation of these items, and that it does not appear to have been argued that this was not the correct test to apply. For the reasons which I have given above, insofar as Rhind J applied the "necessary or proper" test, I would respectfully disagree with its application to counsel's fees. However, having regard to the very substantial difference between what Hong Kong leading counsel would have charged compared to London counsel's brief fee (and the even greater difference when compared to the brief fee plus additional expenses) it is understandable that Rhind J took the view that the cost of the additional items should not be allowed on a party and party taxation.

18. In Ngan Wun Yeung, it would appear that Master Poon in fact applied the "excessive and unreasonable" test (see his judgment at 417G and 418B). His adoption of Simpsons Motor Sales was not in respect of the comparative approach, but in relation to its rejection of the suggestion that what the paying party had itself paid its counsel was an appropriate yardstick by which to judge the fees of the receiving party's counsel.

19. I also note that in Xinyuan Trading Co. Ltd v N P H Petrochemical Ltd (unreported, HCA 18159/98 and CACV 276/98, Master Poon, 25 September 2000), which was also cited to me in a different context by Mr Thomas, that Master Poon taxed down a brief fee paid to leading counsel on the basis that it was "unreasonable and excessive".

20. I therefore approach the question of the quantum of counsel's fees that are challenged on the basis that they are to be disallowed or reduced only if they are excessive and unreasonable, and that this requires the adoption of a more generous basis that would otherwise be applicable on a party and party taxation.

21. Approached on this basis, I am unable to see that the fees allowed by Master Woolley in respect of Mr Chang S.C.'s brief can be said to be excessive or unreasonable. Viewed in isolation, a brief fee of HK$200,000.00 in respect of counsel of the seniority and experience of Mr Chang, for an application in respect of which he was instructed on an urgent basis, and which (as is apparent from the judgment of Le Pichon J) involved difficult questions of law, and was no doubt of considerable importance to his client, who had invested some US$80 million in GBRE and had seen its interest in that company shrink from around 18% to less than 5%, does not strike me as being either excessive or unreasonable, even though it may be higher than other counsel might have charged.

22. Moreover, I do not consider that the other points made on behalf of Mr Ho can withstand scrutiny.

23. First, I do not consider that it is appropriate to aggregate the fees charged by leading and junior counsel and ask whether the total of their fees can be regarded as "excessive and unreasonable". In this case, the question of whether or not it was appropriate for two counsel to have been instructed was not a matter for Master Woolley to consider, Always Win having successfully applied for a certificate for two counsel from Deputy Judge To in the course of their application for the costs of the various applications that had been heard by Le Pichon J. It was open to Mr Ho to argue this point before Deputy Judge To. It appears that no submissions were made at that point in opposition to the application for certificate for two counsel. Having had the opportunity to argue the point, and having foregone it and had the decision go against him, it is no longer open to Mr Ho at the taxation stage to seek in effect to reopen the point in this way. No doubt if there had been no application for a certificate for two counsel, the question of whether or not this was an appropriate case for two counsel to have been instructed, and if not, whether leading counsel should have been instructed, or junior counsel only, would have been matters which were open for argument before Master Woolley. But the point having been raised before and decided by Deputy Judge To, it was no longer open at this stage.

24. Second, just as the fees paid by Mr Ho to counsel instructed by him are not of particular relevance when considering the appropriateness of the fees paid by Always Win to its counsel (see paragraph 18 above), it seems to me that the fees charged by Mr Harris for the Five Shareholders are similarly of limited relevance. Given that it has been determined by Deputy Judge To that it was appropriate for Always Win to instruct two counsel, it seems to me that the relevant question is whether the fee allowed in respect of Mr Chang S.C.'s brief is unreasonable and excessive compared to what other suitably qualified senior counsel might have charged. In my view, it was not.

25. Third, as to the question of the representation necessary at the hearing on 24 November 1999 on the basis that that hearing involved Always Win playing a supporting role, as it did not have an application of its own, this too was a matter which seems to me to be concluded by Deputy Judge To's granting of certificate for two counsel for this and the other hearings. Moreover, Mr Wong, appearing for Always Win before me, drew my attention to the fact that Mr Chang had been involved in advising Always Win for some time in relation to its position as a shareholder of GBRE. That being so, even if the matter were open for reconsideration before me, it seems to me that it would have been proper for Always Win to have wished to have the same counsel represent it wherever possible, particularly in light of its very substantial investment (at least in monetary terms) in GBRE. To my mind, this applies to both the question of whether separate representation was appropriate, and to the question of the number of counsel that should have been instructed.

26. Finally, so far as the suggestion that a reduction should be made to reflect the fact that parts of the application were not proceeded with at the hearing on 24 November 1999, it seems to me that this is of limited relevance so far as Always Win was concerned, given that it was not its own application. In any event, it does not seem to me to follow that simply because certain aspects of the relief sought were not pressed for (or not obtained after argument) that much of the preparatory work that would have been necessary for such a hearing would have been wasted, or would not have had to be done had there been a more limited form of application from the outset. It would no doubt have remained necessary for counsel to have mastered the underlying facts in respect of what appear to have been complex transactions, in order to present whatever application was in fact made.

27. For all of these reasons, I decline to disturb the decision of Master Woolley in relation to this item.

Objection 2

28. The second objection relates to a fee for perusal of incoming papers and communications with instructing solicitors over the period from 25 November 1999 to 9 December 1999 by junior counsel, Ms Eliza Yiu. The amount claimed was HK$25,000.00, in respect of 12 hours work. This was reduced on taxation to HK$12,500.00, an amount which was confirmed by Master Woolley on review.

29. In confirming the amount which he had initially allowed, Master Woolley stated that he regarded this item as "reasonable". Mr Thomas submitted that this applied the wrong test, in that the correct test was whether or not the item was "necessary or proper". For the reasons which I have already given, I do not consider that Master Woolley applied the wrong test. Given that there appears to have been a substantial amount of documentation which had to be considered in a fairly short time frame, it seems to me that the allowance of HK$12,500.00 in respect of this cannot be seriously faulted, and I confirm Master Woolley's decision in this regard.

Objection 3

30. This relates to Mr Chang S.C.'s fees for perusal of papers over the same period. The original amount claimed of HK$30,000.00 was reduced by Master Woolley on taxation to HK$15,000.00, which he confirmed on review. As with junior counsel's fees, Master Woolley considered that the reduced amount allowed was reasonable.

31. While I am of the view that this was the appropriate test to apply, it appears from the bill of costs that Mr Chang's fees for a consultation which took place on 9 December 1999 were stated to be inclusive of perusal of papers. In these circumstances, it seems to me that it could properly be said to be unreasonable for a separate charge to be made for perusal of papers. I would therefore vary the decision of Master Woolley by allowing this objection, and disallowing the amount of HK$15,000.00 in respect of this item.

Objection 4

32. This objection related to a fee charged by Ms Yiu for perusal of papers. The amount involved was only some $2,500.00, and this was not pursued by Mr Thomas at the hearing before me. I therefore confirm Master Woolley's decision in relation to this item.

Objection 5

33. This related to Mr Chang's brief fee for the hearing of the various summonses that were before Le Pichon J on 13 January 2000. The fee charged was HK$250,000.00. This was reduced on taxation (and confirmed on review by Master Woolley) to HK$220,000.00. Mr Ho's objections to this item were as follows:-

(1) Using the hypothetical counsel test, the aggregate fee allowed in respect of Mr Chang and his junior, Ms Yiu, was excessive compared to the amount allowed in respect of Mr Harris, who appeared for the Five Shareholders.

(2) The brief fee charged by junior counsel (HK$60,000.00) was excessive.

(3) There was duplication of work between senior and junior counsel.

(4) The hearing was in part a hearing of Always Win's summons dated 10 January 2000, which sought the same relief as had been afforded to the Five Shareholders by the order made on 24 November 1999. The hearing should therefore be regarded as a continuation of the hearing of the Five Shareholders' summons of 23 November 1999, and this should be taken into account in considering the appropriateness of the fee allowed.

(5) Master Woolley applied the wrong test, in that he asked himself whether the fee was reasonable, and not whether it was necessary or proper.

(6) Dealing with the last of these points first, for the reasons which I have explained above, I do not regard the failure to apply the "necessary or proper" test as having been incorrect as a matter of law.

34. So far as the first point is concerned, this is essentially the same point as was made in relation to Mr Chang's brief fee for the hearing on 24 November 1999, and I reject it for the reasons given in paragraphs 23 and 24 above.

35. I do not see the relevance of the suggestion that junior counsel's brief fee was excessive when this fee was not the subject of any objection before me. Even if it might be regarded as excessive or unreasonable in itself, this cannot, in my view, affect the assessment of the appropriate level of Mr Chang SC's fees.

36. The contention regarding duplication of work is one which is generally made in the context of the charges of a party's solicitors, where more than one fee earner is involved in the same piece of work - in such circumstances, the normal approach is to allow only one set of fees. I do not think that this approach is appropriate in relation to counsel's fees where the matter has been certified as being fit for two counsel. In such a case, the court having considered the matter and come to a view on it, it cannot be assumed (and would not, I think, be open to a paying party to suggest) that both counsel were in fact engaged on work that involved duplication of their efforts.

37. Finally, I am unable to accept the suggestion that the hearing on 13 January 2000 should be regarded as simply a continuation of the earlier hearing on 24 November 1999. It seems clear to me that it was not. So far as Always Win was concerned, it was the first occasion on which it had made its own application, even though that application may have been in respect of similar orders to those obtained by the Five Shareholders earlier. Moreover, the argument on this occasion lasted three days, as opposed to a little under a day on the first occasion, so it is fair to infer that the matter was more fully prepared and argued at this hearing. It is also, I think, fair to have regard to the fact that there was substantially more evidence before the court, and that all parties had filed a number of further affidavits and affirmations between the two hearings. The hearing bundles extended to some 8 lever arch files. All of these are factors which indicate that there was nothing inappropriate in a fresh brief having been charged for this hearing, and for it to have been allowed at the level at which Master Woolley taxed it.

Objections 6 and 7

38. These objections are to the level of refreshers charged by Mr Chang, SC and allowed by Master Woolley at HK$75,000.00. The basis of the objection is that to allow a total of HK$105,000.00 for counsel's refreshers (HK$75,000.00 for Mr Chang and HK$30,000.00 for Ms Yiu) is excessive, having regard to the hypothetical counsel test, and the actual fees charged by Mr Harris, and by Mr Ho's own counsel, Mr Bleach, SC. The suggestion is also made that there was duplication of work between senior and junior counsel. I have considered and rejected each of these points in the context of Objections 1 and 5 above, and reject them in this context also. In all the circumstances of the case, I am not of the view that Mr Chang's refreshers are either excessive or unreasonable.

Objection 8

39. The final objection that was raised was that there had been some eight months delay between the making of the relevant costs orders on 21 March 2002 and the issuance of Always Win's bill of costs on 6 November 2002. In his oral submissions, Mr Thomas also sought to rely on the fact that some two years elapsed between Le Pichon J's judgment in February 2000 and the making of the costs orders in March 2002. He submitted that the overall delay was such as to justify the making of a global reduction of some 10%. In support of this submission, he referred me to the provisions of Order 62 rule 22(3) which gives the court power to make appropriate orders to sanction undue delays by the receiving party in the taxation process, and to Attorney-General v Commodore Electronics Ltd [1994] 1 HKC 660, where Master Gould made a global reduction of 20% in a case in which there had been a delay of nearly two years in taxation of a bill of costs, five months having elapsed after the making of the costs order before instructions for the preparation of the bill were given, the bill (consisting of some 42 items) having taken a year to prepare, and a further five months having passed before the draft bill was sent to the other party's solicitors.

40. In my view, it would not be appropriate to have regard to the period before the costs order was made by Deputy Judge To, since prior to that date, there was no costs order in favour of Always Win which could have been the subject of taxation.

41. So far as the delay after the making of the costs order was concerned, Mr Wong informed me that it was necessary to go through a considerable amount of documentation to extract the material necessary to enable the bill of costs to be drafted. The documents were then sent, in early June 2002, to a law costs draftsman who was also instructed to draft a bill of costs for the Five Shareholders. In the event, the draft bill was prepared and sent to Mr Ho's solicitors on 6 September 2002. No response to the bill having been received, the bill of costs was filed and an appointment to tax issued on 6 November 2002. The bill of costs covered several hundred items and ran to some 60 pages. It seems to me that the situation here was very different from that in the Commodore Electronics case - the applications under consideration were much more complex, the quantity of documentation was significantly greater and the amount of detail and material in the bill of costs here very greatly exceeded those in the Commodore Electronics case. Having examined the bill itself, I do not think that it could be said that to have taken some three months to collate all the relevant material and send it to the law costs draftsman with instructions to prepare a bill of costs, and for the law costs draftsman to have taken about 3 months to prepare the bill, can be said to involve undue delay on the part of those acting for Always Win. Once the draft bill was prepared and sent to Mr Ho's solicitors, it seems that there was no response - in these circumstances, I do not see that any blame should be laid at the door of those acting for Always Win in waiting for about two months before taking out the appointment to tax.

42. For all of these reasons, I do not consider that there has been any undue delay on the part of those acting for Always Win, and I reject this objection.

43. Thus, save for Objection 3 which I allow, I reject all of the objections which have been raised before me.

Costs

44. At the end of the hearing before me, Mr Wong for Always Win submitted a skeleton bill of costs in respect of the review hearing before Master Woolley and of the hearings before me (there having been an earlier callover hearing on 13 November 2003), and invited me to make a gross sum assessment of Always Win's costs in the event that Always Win succeeded on Mr Ho's summons for review. Mr Thomas did not have any submissions to make as to the quantum of these costs. However, as Mr Thomas had not prepared a similar skeleton, I gave leave for him to put in a skeleton bill of costs on behalf of Mr Ho. This was subsequently submitted, and was responded to by those acting for Always Win, who took the opportunity to amend their own skeleton bill to take account of a small amount of post-hearing work. No submissions were made by those acting for Mr Ho as to these further items.

45. In the result, Always Win has been successful in relation to all except one of the objections pursued by Mr Ho. Having regard to the very limited success which Mr Ho's application has met with, I am of the view that the appropriate costs order would be for Mr Ho to pay to Always Win 90% of its costs of the application, and I include in these costs the costs of the call over hearing before me on 13 November 2003, having taken into account the submissions as to the costs of that hearing, which were made by Mr Ho's solicitors in the correspondence to which I have just referred. It seems to me that it was inevitable that the hearing would have proceeded as a call over hearing, and that attendance of the parties would have been required. So far as the costs of the review hearing before Master Woolley are concerned, I would vary the costs order made by Master Woolley so as to award to Always Win 80% of its costs of that hearing, having regard to the further objection which I have now upheld.

46. As Always Win's costs for the hearing before Master Woolley were HK$4,800.00, I shall make an order that Mr Ho should pay Always Win 80% of that sum, or HK$3,840.00, by way of gross sum assessment of its costs of that hearing. As Always Win's costs of the application before me totalled HK$29,255.00, I shall make an order that Mr Ho should pay it 90% of that sum, or HK$26,329.50, by way of gross sum assessment of its costs of this hearing.

Representation:

Mr Thomas, of Messrs Herbert Smith, for David Yuk Wah Ho

Mr Kenneth Wong, of Messrs Woo, Kwan, Lee & Lo, for Always Win Development Limited

HCCW 399/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP PROCEEDINGS NO. 399 OF 1999

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J U D G M E N T

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1. This is an application by Mr David Yuk Wah Ho ("Mr Ho") by summons dated 23 October 2003 seeking a review of Master Woolley's decision dated 21 August 2003 on a review of taxation in respect of a bill of costs in respect of the costs of Asia Pacific Growth Fund II, L.P, BeN Offshore Investments Limited, Fantasia Venture Limited, Onfem Holdings Limited and Quantum Emerging Growth Partners C.V. (collectively "the Five Shareholders"). The bill related to the Five Shareholders' costs in respect of a number of applications (which I shall describe briefly below) arising out of winding up proceedings against Greater Beijing Region Expressways Limited ("GBRE"), a company involved in toll road projects on the Mainland, of which Mr Ho was a director and an indirect shareholder.

2. By his decision, Master Woolley rejected (save in one minor respect) the objections which Mr Ho had raised in respect of this bill. Mr Ho now seeks a review of that decision pursuant to RHC Order 62 rule 35, which provides that:-

"Any party who is dissatisfied with the decision of a taxing master to allow or to disallow any item in whole or in part on review under rule 33 or 34, or with the amount allowed in respect of any item by a taxing master on any such review, may apply to a judge for an order to review the taxation as to that item or part of an item ..."

3. The background to the matter (which I have taken substantially from the judgment of Le Pichon J dated 8 February 2000) may be summarised as follows. On 7 May 1999, a petition seeking the winding up of GBRE on the just and equitable ground was presented by one of its shareholders, Miracle Chance Limited, which complained of the dilution by Mr Ho of its shareholding in GBRE, and also of other transactions which were said to have resulted in Mr Ho and entities connected by him benefitting at the expense of GBRE. Following the presentation of the petition, a number of other shareholders of GBRE indicated that they wished to appear on the hearing of the petition, although they did not (at that stage, at least) indicate whether they supported or opposed it. These included the Five Shareholders, and another shareholder in GBRE called Always Win Development Limited ("Always Win"). On 5 November 1999, while the petition proceedings were still pending, the Five Shareholders, Always Win and another shareholder in GBRE called China Securities (International) Limited ("China Securities"), who together held some 62.2% of the issued share capital of GBRE, passed a resolution for the removal of Mr Ho and his associates as directors of GBRE with effect from 20 November 1999. Mr Ho was apparently notified of this resolution as a matter of courtesy. His response, the same day, was to cause GBRE to allot to a company controlled by him sufficient shares to enable him to defeat this resolution. This allotment of course also had the effect of diluting the shareholdings of the Five Shareholders, Always Win, and China Securities.

4. On discovering this allotment, the Five Shareholders applied by Summons dated 23 November 1999 for injunctive relief against GBRE, Mr Ho and other directors associated with him, alternatively for the appointment of a provisional liquidator to GBRE, and for discovery from GBRE, Mr Ho and the other directors associated with him. This summons was heard the following day, 24 November 1999, when it was supported by Always Win. The Five Shareholders were represented by Messrs. Linklaters and Mr Jonathan Harris of counsel (China Securities did not take part in the application). In the event, the applications for injunctive relief and appointment of provisional liquidators were not proceeded with, apparently because it was thought that these might result in an event of default under the terms of a bond issue which had been made by a subsidiary of GBRE, which could result in substantial losses to GBRE, and the Five Shareholders chose not to offer a cross-undertaking in damages. However, revised orders seeking discovery were sought, and Le Pichon J made orders requiring GBRE and its directors to make disclosure and discovery.

5. On 2 December 1999, GBRE and the directors issued summonses seeking the discharge of the disclosure and discovery orders made on 24 November 1999. An interim order was made by Le Pichon J on 3 December 1999, when directions were given for the filing of evidence and fixing dates for the substantive hearing of the applications for discharge. This was eventually heard on 13, 14 and 19 January 2000. In the event, Le Pichon J dismissed the applications for discharge of the 24 November 1999 order. There was also before Le Pichon J an application by Always Win for similar orders as had been granted to the Five Shareholders on 24 November 1999, which Le Pichon J granted. Le Pichon J did not deal in her judgment with the costs of the application before her, or of the costs of various earlier hearings (including that on 24 November 1999) which had been reserved. These costs were eventually dealt with by an order of Deputy Judge To dated 21 March 2002, in which it was ordered that Mr Ho should pay the costs of the Five Shareholders and Always Win on a party and party basis.

6. Following the making of the costs order, it appears that instructions were given by the Five Shareholders for a bill of costs to be drawn up by a law costs draftsman. A draft bill of costs was submitted to Mr Ho's solicitors on 9 September 2002, and the formal bill was filed on 6 November 2002, after which it was taxed and reviewed by Master Woolley.

7. Before me, Mr Ho raises a number of objections to the Five Shareholders' bill of costs. Some of these relate to counsels' fees which had been allowed by Master Woolley. Others relate to charges by their solicitors for various items of work done in connection with the various applications and hearings. The final objection relates to Master Woolley's rejection of a submission that had been made to him that the overall bill as taxed should be the subject of a further global reduction to take account of what was said to be undue delay on the part of the Five Shareholders in having their costs taxed.

8. Pursuant to Order 62 rule 35(4):-

"Unless the judge otherwise directs, no further evidence shall be received on the hearing of an application under this rule, and no ground of objection shall be raised which was not raised on the review by the taxing master but, save as aforesaid, on the hearing of any such application the judge may exercise all such powers and discretion as are vested in the taxing master in relation to the subject-matter of the application."

It is therefore open to me to exercise the powers and discretion which vested in Master Woolley afresh, without being fettered by the manner in which he dealt with the matter. However, it would not be open to Mr Ho to raise new grounds of objection which were not raised before Master Woolley unless I were to direct that he could do so.

9. A general objection was taken to many of the objections raised as being new grounds of objection which had not been raised at the review by Master Woolley. Mr Nip, appearing for the Five Shareholders, submitted that I should not allow Mr Ho to do this. Mr Thomas, appearing for Mr Ho, submitted that the objections had been raised before Master Woolley, and that the further arguments advanced before me did not amount to new grounds. Having considered the additional arguments advanced, I am of the view that they do amount to the raising of new grounds for objection, but as Mr Nip was in a position to deal with them, and had done so in his skeleton argument filed at the hearing, I did not consider that permitting Mr Ho to raise them gave rise to any real prejudice to the Five Shareholders, and I therefore allowed Mr Thomas to address me in relation to all the points raised in his skeleton submissions.

10. I turn now to consider each of the objections raised by Mr Ho, and will deal as necessary with the applicable principles when dealing with each objection.

Objection 1

11. The first objection taken was to the brief fee paid to Mr Harris for the hearing on 24 November 1999. Mr Harris' brief fee was HK$75,000.00. This allowed in full by Master Woolley on taxation and was confirmed upon review.

12. Mr Thomas, appearing for Mr Ho, submitted that this amount should be reduced to take account of the fact that the injunctive relief and provisional liquidator parts of the application were not pursued at the hearing, so that, having dropped a substantial part of the relief originally sought, the brief fee charged should be regarded as unnecessary or excessive. Mr Thomas said that the decision on the part of the Five Shareholders not to offer any cross-undertaking in damages meant that the applications for an injunction or the appointment of provisional liquidators was bound to fail, and the Five Shareholders should not, in these circumstances, recover the whole of the brief fee paid to their counsel.

13. It seems to me that if a submission of this nature were to have been made, it would more properly have been made at the time when the order for costs was being argued. While there are occasions on which a party may be deprived of costs attributable to a specific issue on which it has failed, or may even be ordered to pay the other side its costs of such an issue, such an order is relatively uncommon, and, if made, will normally be made when the overall costs of the action or application are dealt with. Had this been a point with real merit, I would have expected it to have been raised in argument when the question of costs was before Deputy Judge To for decision. The point not having been raised at that stage, it is, in my view, inappropriate for it to be raised now.

14. Further, Mr Nip submitted that the decision not to proceed with parts of the relief sought was only made at the hearing, when it became known that there was a risk that the granting of an injunction or appointment of provisional liquidators might involve an event of default in respect of bonds issued by a subsidiary of GBRE, with potentially substantial damages being suffered. In these circumstances, it does not seem to me that the Five Shareholders can fairly be criticised for deciding not to pursue such relief.

15. In any event, whatever relief was sought, the preparation for the hearing from counsel's point of view would seem likely to require much the same amount of work in terms of familiarisation with the underlying materials and evidence which related to complex transactions (as was recognised by Le Pichon J). In these circumstances, it does not seem to me that it would be appropriate to make any reduction in respect of such fees simply because not all of the relief originally sought was proceeded with or obtained.

16. For all of these reasons, I reject this objection, and confirm the decision of Master Woolley in this respect.

Objection 2

17. This related to Mr Harris' fees for settling the 3rd Affidavit of Mr Walker, the partner having the conduct of the matter for the Five Shareholders. This affidavit was prepared to respond to the allegations of material non-disclosure relied upon as the basis for the applications by GBRE and the directors to discharge the orders made by Le Pichon J on 24 November 1999. It was submitted that counsel's involvement in settling this affidavit was neither necessary nor proper, since it was a matter within the competence of the solicitors.

18. It was also suggested that Master Woolley erred in principle in allowing these fees on the basis that they were reasonable, rather than necessary or proper. In this respect, Mr Thomas submitted that the appropriate test to apply to counsel's fees was that laid down in Order 62 rule 28(2) as being applicable to party and party taxations - namely, whether the costs incurred were "necessary or proper" for the attainment of justice.

19. Mr Nip accepted that the "necessary or proper" test should be applied to the question of whether or not it was appropriate to involve counsel at all. However, he submitted that once that question was resolved in favour of the receiving party, the quantum of counsel's fees should only be disturbed if they were "excessive and unreasonable" - see paragraph 2(5) of the Part II of the First Schedule to RHC Order 62.

20. Mr Thomas submitted that notwithstanding the terms of paragraph 2(5), the quantum of counsel's fees should be taxed in substantially the same way as any other item in a party and party taxation. He referred to the approach adopted by the English courts in relation to the taxation of counsel's fees, as illustrated by cases such as Simpsons Motor Sales (London) Ltd v Hendon Corporation (No. 2) [1965] 1 WLR 112, where it was stated that the measure of counsel's fees is to be determined by estimating (on the basis of the court's knowledge and experience) the fee to which a hypothetical counsel capable of conducting the case effectively would be content to take on the brief, bearing in mind that such hypothetical counsel does not insist on the particularly high fees sometimes demanded and obtained by "fashionable" counsel. He suggested that this approach had been applied in a number of Hong Kong decisions, such as Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1982] HKLR 387 and Ngan Wun Yeung v Lok Sin Tong Benevolent Society, Kowloon [2000] 2 HKC 404, and was supported by the commentary in the Hong Kong Civil Procedure 2004 (at para 62/App/31).

21. In my view, it is not possible to equate the test to be applied to the taxation of counsel's fees laid down in paragraph 2(5) of Part II of the First Schedule to Order 62 to that applicable to party and party taxations under Order 62 rule 28(2). Paragraph 2(5) of Part II of the First Schedule is a provision that is peculiar to Hong Kong. It did not exist under the equivalent rules applicable in England prior to the Woolf reforms. It has recently been described as "exceptional" by the Chief Justice's Working Party on Civil Justice Reform in its Final Report, since it provides a substantially more generous basis of taxation for counsel's fees in party and party taxations (to which it applies by virtue of rule 32(1)) than for other items in such taxations. The question that is to be asked when considering counsel's fees is whether such fees are "excessive and unreasonable" - if they are not, they are to be allowed in full on taxation. This wording is very different from the test of "necessary or proper" which applies to party and party taxations. It resembles most closely the wording of Order 62 rule 29(1), applicable to the taxation of costs between a solicitor and his own client, where all costs are to be allowed unless they are of an "unreasonable amount" or have been "unreasonably incurred", and which is clearly a more generous basis of taxation than the party and party basis. Further, paragraph 2(5) provides that where the taxing master is satisfied that the fee is "excessive and unreasonable", he should exercise his discretion having regard to all the relevant circumstances and in particular the matters set out in paragraph 1(2) of this Part of the Schedule. Paragraph 1(2) itself states that it is applicable to (inter alia) the exercise by a taxing master of his discretion under rule 32(2), which, as noted above, applies to solicitor and own client and trustee taxations. This is a further indication that a more generous basis than that applicable to a party and party taxation is to be applied to counsel's fees, whatever the basis of taxation.

22. I do not see any particular difficulty in adopting the comparative approach suggested by the Simpsons Motor Sales case in considering whether counsel's fees in a given case are excessive and unreasonable, so long as in doing so, it is remembered that one is doing so on a more generous basis than that applicable to other items in a party and party taxation. I do not regard either of the Hong Kong cases relied upon by Mr Thomas as requiring me to apply any different principle.

23. In the Tai Hing case, the actual issue for consideration was not the level of counsel's fees, but whether or not certain additional items paid to London counsel such as first class airfares, travelling time and hotel expenses should be allowed on a party and party taxation. It does appear from the judgment, however, that Rhind J applied the "necessary or proper" test to the taxation of these items, and that it does not appear to have been argued that this was not the correct test to apply. For the reasons which I have given above, insofar as Rhind J applied the "necessary or proper" test, I would respectfully disagree with its application to counsel's fees. However, having regard to the very substantial difference between what Hong Kong leading counsel would have charged compared to London counsel's brief fee (and the even greater difference when compared to the brief fee plus additional expenses) it is understandable that Rhind J took the view that the cost of the additional items should not be allowed on a party and party taxation.

24. In Ngan Wun Yeung, it would appear that Master Poon in fact applied the "excessive and unreasonable" test (see his judgment at 417G and 418B). His adoption of Simpsons Motor Sales was not in respect of the comparative approach, but in relation to its rejection of the suggestion that what the paying party had itself paid its counsel was an appropriate yardstick by which to judge the fees of the receiving party's counsel.

25. I also note that in Xinyuan Trading Co. Ltd v N P H Petrochemical Ltd (unreported, HCA 18159/98 and CACV 276/98, Master Poon, 25 September 2000), which was also cited to me in a different context by Mr Thomas, that Master Poon taxed down a brief fee paid to leading counsel on the basis that it was "unreasonable and excessive".

26. I therefore consider that the approach submitted by Mr Nip is to be preferred. Applying that approach, I ask myself whether it was "necessary or proper" for Mr Harris to have been instructed to settle Mr Walker's 3rd Affidavit. It seems to me that, having regard to the importance of the discharge application to the Five Shareholders, who had apparently invested substantial amounts to obtain their shareholdings in GBRE, and required the discovery that was sought to ascertain the status of their shareholdings, and the extent to which they may have been diluted by the actions of Mr Ho, it was entirely proper for what was likely to be a principal affidavit to be relied upon by them to resist the discharge of the orders which they had obtained to be reviewed and settled by counsel. I therefore conclude that it was appropriate for Mr Harris to have been instructed to settle this affidavit.

27. Having reached this conclusion, the fees charged by Mr Harris should only be reduced if they are unreasonable and excessive. No particular submissions were made as to the level of Mr Harris' fees taken on their own. The objection taken was that the total amount of the fees allowed (for Mr Harris and the solicitors) was excessive. However, once it is accepted (as I think it should be) that it was proper to involve counsel, it seems to me to be necessary to consider his fees separately from those charged by the solicitors. Having regard to the importance of the affidavit, and its complexity as referred to by Master Woolley, I do not consider that it is appropriate to disallow any part of this item, and I accordingly reject this objection.

Objection 3

28. This objection was to the quantum of Mr Harris' brief fee for the hearing commencing on 13 January 2000. It was argued that the brief fee was too high because:-

(1) the hearing should have been regarded as a continuation of the 24 November 1999 hearing, or alternatively of a hearing on 3 December 1999 (for which a fee of HK$12,500.00 had been charged);

(2) Mr Harris had already charged two earlier brief fees in relation to the summonses taken out by GBRE and its directors in the amounts of HK$12,500.00 and HK$10,000.00 respectively (the former of which had been allowed on taxation);

(3) the brief fee was excessive when compared to the brief fee charged for the 24 November 1999 hearing, or that charged for the 2 December 1999 hearing;

(4) Master Woolley had wrongly failed to apply the "necessary or proper" test in assessing the quantum of this brief fee.

29. In my view, none of these objections have any merit. It is quite clear that matters had moved on substantially since the hearing on 24 November 1999. An order having been made at that hearing, there were now applications for the discharge of that order before the court. This was clearly a fresh application that was different in nature to that which had been heard on 24 November 1999. Although the hearing had been fixed following an initial hearing of the summonses to discharge on 3 December 1999, there would not seem to have been any substantial argument in relation to the summonses at that initial hearing, which was no doubt used for the purpose of giving directions for the substantive hearing which was to take place on 13 January 2000, and which lasted three days. I therefore do not consider that the hearing on 13 January should be regarded as simply a continuation of a hearing which had already commenced, and for which a brief fee had already been charged.

30. I do not think that the second or third points made withstand scrutiny either. The brief fees charged in December 1999 appear to have been for short hearings essentially of the nature of directions hearings, and the fees charged appear to be commensurate with hearings of that character. I do not regard it as helpful to compare fees charged for such hearings with the fee charged for the substantive hearing of what appears to be an important and potentially complex matter.

31. It is pertinent to note that between the hearings on 24 November 1999 and 13 January 2000, some 14 affidavits or affirmations were filed by various parties, dealing with different aspects of the applications. This factor also suggests that the hearing on 13 January 2000 should not be regarded as merely the continuation of some previous hearing, and that fees charged for other hearings of a different character are not a particularly good basis of comparison.

32. So far as the criticism that Master Woolley applied the wrong test is concerned, for the reasons which I have explained above, I do not agree that the quantum of counsel's fees is to be assessed by reference to what is "necessary or proper", but by reference to whether they can be shown to be "excessive and unreasonable". Having regard to the length of the hearing, its complexity and the amount of material which would have had to be mastered in preparation for it, I do not consider that it can be said that a brief fee of HK$150,000.00 was excessive or unreasonable, and I accordingly reject this objection.

Objection 4

33. This related to a fee paid to Mr Harris for drafting a letter concerning compliance with the orders which had been made by Le Pichon J on 24 November 1999, as revised by her order of 8 February 2000. The amount claimed was HK$23,800.00 for 7 hours work, reduced on taxation to HK$18,000.00, and confirmed on review at that amount.

34. It was suggested that this was a matter within the competency of the solicitors, and so not a matter which should be regarded as one in respect of which it was "necessary or proper" to instruct counsel.

35. Having reviewed the letter, and bearing in mind that it was drafted with a view to being sent out as a prelude to an application to the court to enforce compliance with the orders which had been made, it seems to me that it was proper to instruct counsel to draft this letter, and I accordingly reject this objection.

Objection 5

36. This relates to Mr Harris' brief fee for the costs hearing before Deputy Judge To. The amount charged was HK$90,000.00, which was reduced by Master Woolley to HK$60,000.00. Mr Thomas submitted that this should simply have been regarded as a continuation of the earlier hearings, and only a refresher should have been charged. Reference was also made to the shortness of the skeleton argument prepared, the fact that the hearing lasted only half a day, and the fact that Always Win did not instruct counsel to attend. Finally, it was suggested that Master Woolley had erred in failing to apply the "necessary or proper" test in assessing the amount of counsel's fee.

37. Having regard to the fact that the costs hearing (for whatever reason) did not take place until some two years after the previous hearings, and was before a different judge, it seems to me proper that a fresh brief fee should have been charged for the preparation and conduct of this hearing. Further, I accept that some complexity was involved in that it would have been necessary to explain the background of the proceedings to the court, with a view to persuading it not to apply the usual costs order in Norwich Pharmacal proceedings, in which the costs of the party giving discovery are usually payable by the applicant for the order. I do not regard the fact that Always Win did not instruct counsel as being of particular relevance. Of more relevance would appear to be the fact that Mr Ho himself instructed a senior junior counsel to present his arguments on costs.

38. So far as the quantum of the fees is concerned, having regard to all of these factors, I do not consider that the fee allowed of HK$60,000.00 for the brief on this hearing can be regarded as excessive or unreasonable, and I accordingly reject this objection.

Objections 6, 7 and 15

39. These objections related to the drafting and preparation by the Five Shareholders' solicitors of three letters of advice and/or reporting in respect of the proceedings. The first of these letters provided advice as to various issues arising out of the 24 November 1999 order. The second relates to issues arising out of the initial hearing of the summonses seeking a discharge of the 24 November 1999 order for material non-disclosure. The final item related to an e-mail to counsel in respect of the application to Deputy Judge To for costs in March 2002. Each of these items was reduced on taxation by Master Woolley, by the making of a reduction in respect of the time allowed for each item. Having reviewed the letters in question, it seems to be that they were each necessary and proper, and that the amounts charged were not excessive. In these circumstances, I reject these objections also.

Objections 16 and 17

40. These relate to the time spent by the Five Shareholders' solicitors in reviewing various documents.

41. The first of these objections relates to the review of financial information in respect of GBRE which revealed discrepancies between the Five Shareholders' understanding of their shareholdings in GBRE and the figures which had been reported to regulatory authorities in the Untied States by GBRE. The analysis of these documents is said to have precipitated the application in November 1999. These documents were clearly important, and having regard to their importance, it seems to me that it was both necessary and proper that they should be reviewed. The amount of time claimed was reduced slightly on taxation, and as reduced, it seems to me difficult to suggest that an excessive amount of time was spent on this matter.

42. The second of these objections relates to the review of documentation supplied by the Five Shareholders in the course of preparation of Mr Walker's second affidavit. I find it difficult to see how it could be suggested that this was not necessary or proper. Insofar as the objection is based on the amount of time spent, it seems to me that it is equally unfounded.

43. Accordingly, I reject both of these objections.

Objections 18 and 20

44. These objections relate to time spent by the solicitors in preparation of Mr Walker's first and third affidavits. The first affidavit formed the evidential basis of the application made on 24 November 1999, and the third was the principal response to the allegations of material non-disclosure. Having reviewed these affidavits and their exhibits, it seems to me fair to say that a considerable amount of complex documentation needed to be reviewed for each of these affidavits. In the circumstances, it seems to me that the involvement of the solicitors in each of these affidavits was necessary and proper, and that the time allowed by Master Woolley in respect of their involvement was appropriate, and I decline to allow either of these objections.

45. A request was also made for confirmation that the amounts claimed in respect of these items and those the subject of the next two objections were actually charged to the clients. This request was not complied with, but in my view there was no reason for doing so, when there appeared to be no basis whatever for suggesting that this might not have been done.

Objections 19 and 22

46. These relate to the time spent by the Five Shareholders' solicitors in considering Mr Ho's 8th and 11th affirmations. These were sworn in support of the application to discharge for non-disclosure, and in response to an allegation of self dealing which had been made against Mr Ho in Mr Walker's 4th affidavit. These were clearly fairly lengthy and important affidavits, and having reviewed them, I see no reason to interfere with the assessment made by Master Woolley.

Objection 24

47. The final objection that was raised was that there had been some eight months delay between the making of the relevant costs orders on 21 March 2002 and the issuance of the Five Shareholders' bill of costs on 6 November 2002. In his oral submissions, Mr Thomas also sought to rely on the fact that some two years elapsed between Le Pichon J's judgment in February 2000 and the making of the costs orders in March 2002. He submitted that the overall delay was such as to justify the making of a global reduction of some 10%. In support of this submission, he referred me to the provisions of Order 62 rule 22(3) which gives the court power to make appropriate orders to sanction undue delays by the receiving party in the taxation process, and to Attorney-General v Commodore Electronics Ltd [1994] 1 HKC 660, where Master Gould made a global reduction of 20% in a case in which there had been a delay of nearly two years in taxation of a bill of costs, five months having elapsed after the making of the costs order before instructions for the preparation of the bill were given, the bill (consisting of some 42 items) having taken a year to prepare, and a further five months having passed before the draft bill was sent to the other party's solicitors.

48. In my view, it would not be appropriate to have regard to the period before the costs order was made by Deputy Judge To, since prior to that date, there was no costs order in favour of the Five Shareholders which could have been the subject of taxation.

49. So far as the delay after the making of the costs order was concerned, I was told that some 20 files of documents were collated and sent to the law costs draftsman on 10 June 2002, just under three months after the hearing before Deputy Judge To. In the event, the draft bill was prepared and sent to Mr Ho's solicitors on 9 September 2002. No response to the bill having been received, despite several reminders, the bill of costs was filed and an appointment to tax issued on 6 November 2002. The bill of costs covered several hundred items and ran to some 76 pages. It seems to me that the situation here is very different from that in the Commodore Electronics case - the applications under consideration are much more complex, the quantity of documentation is significantly greater and the amount of detail and material in the bill of costs here very greatly exceed those in the Commodore Electronics case. Having examined the bill itself, I do not think that it could be said that to have taken some three months to collate all the relevant material and send it to the law costs draftsman with instructions to prepare a bill of costs, and for the law costs draftsman to have taken about 3 months to prepare the bill, can be said to involve undue delay on the part of those acting for the Five Shareholders. Once the draft bill was prepared and sent to Mr Ho's solicitors, it seems that there was no response - in these circumstances, I do not see that any blame should be laid at the door of those acting for the Five Shareholders in waiting for about two months before taking out the appointment to tax.

50. For all of these reasons, I do not consider that there has been any undue delay on the part of those acting for the Five Shareholders, and I reject this objection.

51. Thus, for the reasons which I have given above, I reject all of the objections which have been raised before me.

Costs

52. At the end of the hearing before me, Mr Nip for the Five Shareholders submitted a skeleton bill of costs in respect of the review hearing before Master Woolley and of the hearings before me (there having been an earlier callover hearing on 13 November 2003), and invited me to make a gross sum assessment of his clients' costs in the event that they succeeded on Mr Ho's summons for review. Mr Thomas submitted that the amounts charged were excessive, at least so far as preparation time for the substantive hearing was concerned. As Mr Thomas had not prepared a similar skeleton, I gave leave for him to put in a skeleton bill of costs on behalf of Mr Ho. This was subsequently submitted, and was responded to by those acting for the Five Shareholders, who took the opportunity to amend their own skeleton bill to take account of the actual time spent at the hearing. They also proposed that the costs of the review hearing before Master Woolley should be the subject of a gross sum assessment to avoid the necessity of going to taxation for the relatively small amount that this involved. No additional submissions were made by those acting for Mr Ho as to either the revised skeleton bill, or the suggestion that the costs of the hearing before Master Woolley should be assessed on a gross sum basis.

53. In the result, the Five Shareholders have been successful in relation to all of the objections pursued by Mr Ho. Accordingly, it follows that they should have their costs of the application before me, including those of the call over hearing on 13 November 2003. It follows that the costs order made by Master Woolley should remain undisturbed, save in relation to the possibility of making a gross sum assessment of those costs.

54. It seems to me that this would be a sensible course to adopt, given the small amount that is at stake. Having considered the skeleton bill in relation to the hearing before Master Woolley, I would accept it and assess the Five Shareholders' costs of that hearing (including a short call over hearing) at HK$8,350.00, and order that Mr Ho pay this sum to them.

55. So far as the hearings before me were concerned, having considered the revised skeleton bill which has been submitted, I am of the view that the amount claimed for preparation time prior to the hearing before me, which totalled 25 hours, was clearly excessive. I would allow a total of 16 hours preparation time (including preparation of bundles) as reflecting what was necessary or proper in all the circumstances of the case. I therefore assess the Five Shareholders' costs of the hearing before me at HK$43,755.00 and order that Mr Ho pay this sum to them.

Representation:

Mr Thomas, of Messrs Herbert Smith, for David Yuk Wah Ho

Mr Norman Nip, of Messrs Linklaters, for the Applicant

" I, the undersigned, Gao Kun, being the registered holder of 65 percent of the issued shares of and in the Company contained in share certificate number 1, at this date, do, pursuant to Article 82 of the Company's Articles of Association, resolve :-

1. Petition

THAT a petition for the winding-up of Greater Beijing Region Expressways Limited on the just and equitable ground be presented to the High Court of The Hong Kong Special Administrative Region.

..."

"82. An action that may be taken by the members at a meeting may also be taken by a resolution of members consented to in writing or by telex, telegram, cable, facsimile or other written electronic communication, without the need for any notice, but if any resolution of members is adopted otherwise than by the unanimous written consent of all members, a copy of such resolution shall forthwith be sent to all members not consenting to such resolution. The consent may be in the form of counterparts, each counterpart being signed by one or more members."

"18 For each Relevant Company the following shall be matters which require the approval of both Shareholders:

.......

(d) The winding-up of the Relevant Company (except upon expiration of the relative concession rights) or its merger or amalgamation with another company or the disposal of substantially all its assets;

..."

"19. In the event that unanimity is not achieved in respect of a matter proposed under Articles 17 and 18, whether at a formal meeting or other forum, a Shareholder who put forward the proposal may serve a written notice of a meeting at seven (7) days space to consider afresh the proposal, and if at such further meeting the Directors of Miracle or GBRE, or the Shareholders, are still unable to come to a unanimous decision whether because the relevant persons cannot come to an agreement or the relevant persons do not attend, then the said Shareholder may serve a further notice on the other Shareholder and Miracle (a) that a deadlock has occurred and (b) (at the option of such Shareholder) either that the Directors of Miracle shall act immediately to wind up Miracle (the other Shareholder to take all steps to cooperate in such winding up) or that the other Shareholder shall sell all its Miracle Shares (as defined in Article 23) or purchase all the said Shareholder's Miracle Shares (such sale or purchase to be dealt with under Chapter 8 as if a breach had occurred under Article 28(e) and the other Shareholder were a Defaulter thereunder)."

"Such an agreement would directly offend against the policy of the Act and, for this reason, would, it is submitted, not be given effect."

"3. No further share capital shall be created or issued in the company or the rights attaching to the shares already in issue in any way altered (save as is herein set out) or any share transfer of the existing shares permitted, save in the following manner, without the written consent of each of the parties hereto."

"(1) A company limited by shares or a company limited by guarantee and having a share capital, if so authorised by its articles, may alter the conditions of its memorandum in any of the following ways. (2) The company may - (a) increase its share capital by new shares of such amount as it thinks expedient;..."

"Mr Dillon argued by reference to section 10, and the well known proposition that a company cannot by its articles or otherwise deprive itself of the power by special resolution to alter its articles or any of them. But the point is the same one. An article purporting to do this is ineffective. But a provision as to voting rights which has the effect of making a special resolution incapable of being passed, if a particular shareholder or group of shareholders exercises his or their voting rights against a proposed alteration, is not such a provision. An article in terms providing that no alteration shall be made without the consent of X is contrary to section 10 and ineffective. But the provision as to voting rights that I have mentioned is wholly different, and it does not serve to say that it can have the same result." (emphasis added)

" I do not doubt that if clause 3 had been embodied in the articles of association so as to be binding on all persons who were or might become shareholders in T.B.L. it would have been invalid but it was, of course, not so embodied. To my mind the significant part of this dictum for the purposes of this appeal is the words 'articles or otherwise' occurring in the first sentence thereof. These words appear to recognise that it is not only fetters on the power to alter articles of association imposed by the statutory framework of a company which are obnoxious.

Turning back to clause 3 of the agreement it appears to me that its purpose was twofold. The shareholders agreed only to exercise their voting powers in relation to the creation or issue of shares in T.B.L. if they and T.B.L. agreed in writing. This agreement is purely personal to the shareholders who executed it and as I have already remarked does not purport to bind future shareholders. It is, in my view, just such a private agreement as was envisaged by Lord Davey in Welton v. Saffery [1897] A.C.299, 331. T.B.L. on the other hand agreed that its capital would not be increased without the consent of each of the shareholders. This was a clear undertaking by T.B.L. in a formal agreement not to exercise its statutory powers for a period which could, certainly on one view of construction, last for as long as any one of the parties to the agreement remained a shareholder and long after the control of T.B.L. had passed to shareholders who were not party to the agreement. As such an undertaking it is, in my view, as obnoxious as if it had been contained in the articles of association and therefore is unenforceable as being contrary to the provisions of article 131 of the Companies (Northern Ireland) Order 1986. T.B.L.'s undertaking is, however, independent of and severable from that of the shareholders and there is no reason why the latter should not be enforceable by the shareholders inter se as a personal agreement which in no way fetters T.B.L. in the exercise of its statutory powers."

"...if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense."

"...the law does not require judges to attribute to the parties an intention which they plainly could not have had".