Leung Yin Ling 訴 The Incorporated Owners Of No.165, Wong Nai Chung Road

LDBM000063A/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LDBMNo: 63 of 2000

 

Between
	Leung Yin Ling	Applicant
	AND
	The Incorporated Owners of No. 165 , Wong Nai Chung Road.	Respondent

Coram: H H Judge Yung, Presiding Officer

Dates of Hearing: 24, 25 and 26 September 2002

Date of Judgment: 24 October 2002

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Reasons For Decision

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1. The Respondent obtained a costs order of this Tribunal and submitted its bill to this Tribunal for taxation. The taxation hearing was before the Registrar of this Tribunal and a subsequent review was also heard. Dissatisfied with the ruling in the review, the Applicant applied to a Presiding Officer for further review in pursuance of Order 62 of the Rules of the High Court.

2. Taxation for the Lands Tribunal Costs had always been dealt with in the High Court before the recent change of practice. At the first day of further review hearing, I was given to understand the change was well supported by a recent decision of Judge Z E Li and practice directions. Unfortunately the material I required was not available before the parties finished their submissions. The parties did not raise the jurisdiction point before me and in order not to waste any more time unnecessarily, I gave my ruling assuming I had jurisdiction to hear the further review. Before the end of the day I was given the materials concerning the change of practice. On a close analysis of the judgment of Judge Z. E. Li , and the materials effecting the change of practice, I came to realize there was no legal basis for the change of practice. It is basic that jurisdiction cannot be conferred on this Tribunal by consent, implied or express, I was left with no choice but to review my decision inviting the parties for argument on the point of jurisdiction.

3. At the review hearing, Mr. Wu, counsel for the Applicant submitted that the decision of Judge Z. E. Li in The Incorporated Owners of Honour Building V Lou Chui Sim & another LDBM NO. 266 of 1999 was correct and should be followed. The contention by Mr. Tam for the Respondent was that the Registrar of the Tribunal has jurisdiction and power to tax costs but that a Presiding Officer had no jurisdiction or power to hear the further review. Mr. Tam submitted without argument that the power of further review lied to the High Court Judge.

4. The parties cannot by consent conferred on the Tribunal jurisdiction which the Tribunal does not have. Conversely, the parties cannot exclude the jurisdiction of the Tribunal by consent. Therefore even though it is common ground that I have no jurisdiction to hear the further review, it is still a live issue and I have to give a ruling on the jurisdiction point.

5. The Lands Tribunal is a statutory creature and as such therefore has no inherent jurisdiction. This Tribunal has no inherent jurisdiction to award costs or to tax costs so awarded. Jurisdiction has been extended on many occasions by the various ordinances. The jurisdiction and power to award costs was conferred on the Tribunal when it was established in 1974. The relevant provision is now in Section 12(1) of the Lands Tribunal Ordinance. No provision was provided for taxation of costs until the insertion of Section 12(2) in 1982. Since then taxation was proceeded with in the High Court until the recent change of practice initiated apparently in the name of the Registrar of the Lands Tribunal and not by the Practice Directions of the Chief Justice.

6. Section 12 (2) provides that:

"Subject to any rules made by the Chief Justice under Section 10(3), Order 62 of the Rules of the High Court shall apply to award, taxation, and recovery of costs in the Tribunal"

Order 62 of the Rules of the High Court stipulates the principles in awarding costs and which principes the Tribunal must apply when awarding costs. The same Order also stipulated procedures and principles of taxation. The clear wording of Section 12 and the provisions of Order 62 mean that both the procedures and the legal principles of taxation must apply to taxation of costs in the Lands Tribunal. Order 62 rule 21 provided for the mode of the beginning taxation proceeding It would be absurd and contrary to the plain meaning of section 12 that the procedure of taxation should not apply. Effect must be given to it in full and not in part. One cannot say that only the legal principles of taxation applied but not the procedure. Order 62 applied to taxation of costs awarded in High Court proceedings and other tribunals and it is nothing unusual that section 12(2) entrusted the taxation of Lands Tribunal costs to the High Court. It should be noted the words to effect that Order 62 should apply mutatis mutandis to the Lands Tribunal are absent in section 12(2). Wording to that effect was used in Rule 9 of the old District Court Civil Procedure (General) Rules when it sought to incorporate the application of provisions of the High Court rules into the District Court. In the instant case, there is no justification to imply such words into section 12(2) and it cannot be the legislative intent.

7. Section 4 of the Lands Tribunal Ordinance provides for the constitution of the Lands Tribunal which consists of the President, Presiding Officers, and Members. When the Lands Tribunal was established in 1974, (Ordinance No. 62 of 1974) it consisted of a President and Members and the constitution of the Tribunal was extended on different occasions later to include all District Judges and Deputy District Judges as ex-officio Presiding Officers. The office of Registrar of the Lands Tribunal was not established until 1977 (Ordinance No. 21 of 1977) about three years after the establishment of the Tribunal. The same ordinance provided for the attachment of deputy registrars, assistant registrars. In 1982 the office of the Registrar of the Lands Tribunal was in effect abolished by Ordinance No. 49 of 1982. Instead the Registrar of the District Court was attached to the Lands Tribunal to perform the functions of the registrar of the Tribunal. The power of the registrar, deputy registrar, or assistant registrar was provided by sections 7A which reads:

"(2) In addition to the powers and duties conferred or imposed by or under this Ordinance or any other enactment, the registrar, any deputy registrar, assistant registrar,....attached to the Tribunal may exercise such powers and perform such duties, insofar as the same are applicable to the business of the Tribunal, as those respectively exercised or performed by the registrar, deputy registrar, assistant registrar....attached to the High Court.

" (3) Any act which by or under the Ordinance or any other enactment is required or authorized to be done by the registrar may be performed by a deputy registrar or assistant registrar of the Tribunal ....."

In many ways the powers and duties of the District Court Registrar and other officers mirror those of the High Court Registrar. However these powers and duties are qualified and restricted by the words " insofar as the same are applicable to the business of the Tribunal". Furthermore it is important not to confuse jurisdiction of a court over certain matters with the powers when exercising such jurisdiction. By definition, Tribunal consists only of the President, Presiding Officers and Members. The District Court Registrar even when attached to the Lands Tribunal as one of its officers is not the constituent member of the Tribunal within the meaning of Lands Tribunal Ordinance. Taxation is a separate proceedings and has never been the business of the President, Presiding Officers or Members. There were good reasons for it. At the time of the enactment of section 12 and the Order 62 of the High Court Rules, the holder of the office of the District Court Registrar did not need to be qualified in law. It was only recently that District Court Registrar was made a judicial officer many years after the enactment of section12(2) and the present Order 62. In taxation of costs in proceedings other than before the High Court, the taxing master was specifically empowered to control the procedure and costs of the taxation proceedings ( see Order 62 rule 2 ). Therefore for many years before the recent enactment making District Court Registrar a judicial officer, taxation of Tribunal costs was not be done by him or by the Tribunal (i.e. the President, Presiding Officers or Members). Order 62 provided for a two-tier procedure with a right to apply to the High Court Judge for a further review of (in the nature of appeal) the decision the taxing master. At the time of the enactment of section 12(2) and Order 62 it could not have been intended by the legislature that two-tier system and procedure for taxation proceedings modelling after that in High Court. It is difficult to imagine that the legislature can foresee in so many years in advance the development that the District Court Registrar would be made a judicial officer after so many years when section 12(2) and Order 62 were enacted. For this reason it cannot be inferred that contrary to the clear wording of section 12 and Order 62 the intent of the legislature was to confer the jurisdiction to tax its own costs on the Tribunal itself.

8. The conclusion must be that whatever the approach is adopted, the literal or purposive, section 12(2) and Order 62 of the Rules of the High Court do not confer on the Tribunal the jurisdiction or the power to tax its own costs. Therefore it is not the business of this Tribunal to tax its own costs and the registrar attached to this Tribunal has no jurisdiction or power to tax its own costs. The fact that the District Court Registrar is a qualified in law and is now a judicial officer is quite beside the point. This is basically the reason given by the District Court Registrar in his decision Incorporated Owners of Tropicana Gardens V Tropicana Gardens Management Ltd. The learned Registrar in effect said if a High Court Master can tax costs, he as a judicial officer can also tax costs. If section 7A is the basis for that proposition, the flaw of the argument can readily be seen by comparing deputy registrars or assistant registrars in the High Court and in the Tribunal. I hope the learned Registrar is not suggesting the assistant registrar of the Lands Tribunal can perform duties of taxing matter. I think the Registrar was relying heavily on the fact that he was now a judicial officer. I have no doubt that whoever was appointed to office of District Court Registrar must be presumed to be able to handle taxation matter. Ability does not come hand in hand with jurisdiction. The fact the District Court Registrar is now more able does not mean he would have greater jurisdiction than his predecessors who were not judicial officers. Looking the provisions of the Lands Tribunal Ordinance, the registrar performed no judicial function before section 12(2) was enacted nor thereafter until recently when assumed the duty (without legal basis) of a Taxing Master. His duty in the Lands Tribunal has always been one of ministerial and not judicial. It simply cannot be the case the legislature intended to confer such important constitutional change by implication omitting express words. With due respect to the District Court Registrar, the case of Incorporated Owners of Tropicana Gardens V Tropicana Gardens Management Ltd (LDBM 374 of 1998) was wrongly decided.

9. The taxation purported to be made in this Tribunal (which does not include the registrar attached to this Tribunal) was irregular and must be set aside. I was given to understand that those who act for the Respondent decided independently without being influenced by notification of change of practice by the registrar to initiate taxation proceedings in this Tribunal. However the Applicant intended to submit the further review to a High Court Judge but was dissuaded not to do so by the registry staff and by a copy of an internal memo the staff gave them. In view of circumstances I think it is difficult to dish out the blame to the parties in any mathematical precision or certainty. The appropriate order for costs should be that the Respondent do pay one third of the costs of the entire taxation proceedings with certificate for counsel and I so ordered.

Y W YUNG

Representation:

Mr. Paul Wu instructed by Chung & Kwan for Applicant

Mr. T W Tam of John Ku, Tam & Ho for Respondent

LDBM000063/2000

LDBM 63/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 63 OF 2000

___________________

BETWEEN
	LEUNG YIN LING	Applicant
	AND
	THE INCORPORATED OWNERS OF NO. 165, WONG NAI CHUNG ROAD	Respondent

___________________

Coram: Acting Registrar Simon Kwang in chambers

Date of Hearing: 17 June 2002

Date of Handing Down Decision: 8 August 2002

_________________________________

DECISION ON REVIEW OF TAXATION

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Background

1. In February 2000, the Applicant brought the action herein against the Respondent for, inter alia, supply of income and expenditure accounts and balance sheets of the Respondent under Section 27 of the Building Management Ordinance. While the Applicant was all along represented by a firm of solicitors, the Respondent acted by its duly authorised representative Mr. Lee Po Keung ("Mr. Lee"). After trial, his Honour Judge Chow, the Presiding Officer of the Tribunal, gave Judgment on 28 November 2000 dismissing part of the claims of the Applicant and ordered the Applicant to pay the Respondent 1/3 of its costs of the action to be taxed if not agreed.

2. Based on the said costs order, the Respondent engaged a firm of solicitors and instructed a law costs draftsman to lodge a bill of costs for provisional taxation in August 2001. The Tribunal notified the parties the outcome of the provisional taxation on or about 11 September 2001. The Applicant's solicitors wrote to the Tribunal on 19 September 2001 requesting for a formal taxation of the Respondent's bill of costs.

The Taxation

3. The Applicant raised a preliminary issue in her List of Objection filed on 25 February 2002 that the Respondent has to prove its compliance with the "indemnity principle" to the extent that the costs claimed in the bill was out of pocket expenses rather than making a profit on the litigation. It was also stated in the said List of Objection that without prejudice to the preliminary issue, the Applicant suggested the hourly rate of Mr. Lee at $200.

4. The Respondent's bill of costs was taxed before me on 3 May 2002. On the preliminary issue raised by the Applicant, I ruled that as the Respondent was at all material times acting in person, the "indemnity principle" was not applicable. Pursuant to Order 62 Rule 28A of the Rules of High Court, I allowed the hourly rate for work done by Mr. Lee for the Respondent at $200 which was also the sum proposed by the Applicant in her List of Objection.

Application for Review

5. The Applicant dissatisfied with my ruling on the preliminary issue. By way of a summons filed herein on 15 May 2002, the Applicant applied for a review of the taxation seeking to set aside my said ruling and contended that the Respondent was not entitled to any profit costs under the "indemnity principle".

6. The Applicant stated her grounds of review as follows:-

(a) the Tribunal erred in ruling that Order 62 rule 28A shall apply to the Respondent who at the material times acted in person;

(b) further or alternatively, the Tribunal erred in ruling that the "indemnity principle" shall not apply to the Respondent who at the material times acted in person;

(c) the said ruling produced an absurd result.

7. The Review was originally scheduled on 20 June 2002. For reasons that I shall deal with at the latter part of this Decision, the hearing was refixed on 17 June 2002. At the hearing, the Applicant's solicitors confirmed that subject to the grounds of review stated above, they had no dispute on the quantum of costs allowed at the taxation. Both parties agreed the quantum of costs allowed at the taxation were:

Profit costs:	$3,367
Disbursements:	$13,600
Taxing fee:	850
Total:	17,817

8. The Applicant was represented by her solicitors at the taxation review hearing while the Respondent was represented by its law costs draftsman. The Applicant's solicitors relied upon various legal authorities in the skeleton submission in particular the Court of Appeal decision in Australian Telephone Distributors Pty. Ltd. (in liquidation) v. Golden Always Ltd. & other [1996] 3HKC 401 in support their arguments. As an issue of law has been raised by the Applicant's solicitors, the Respondent's law costs draftsman asked for leave to allow the instructing solicitors to make submission in reply. Taking into the fact that the Respondent's law costs draftsman only received the Applicant's skeleton argument just before the hearing and the Australian Telephone case was not cited before at the taxation hearing, I considered it would be fair to afford the Respondent's sufficient opportunity to make submission in reply. Accordingly, I directed the Respondent to file and serve their written submission within 14 days and the Applicant to file and serve their written submission in reply within 14 days thereafter.

9. The Respondent's solicitors filed their written submission on 2 July 2002 and the Applicant's solicitors' written submission in response was filed on 16 July 2002.

Litigant in Person- Order 62 Rule 28A of the Rules of High Court ("the Rule")

10. It is not in dispute by the parties that by virtue of Section 12(2) of the Lands Tribunal Ordinance, Order 62 of the Rules of High Court applies to the taxation of the Respondent's bill of costs.

11. The Applicant's argument against the applicability of the Rule was never raised in her List of Objection or at the formal taxation hearing. Such issue was only raised in the review.

12. In the List of Objection which the Applicant should put all her grounds of objection to the Respondent's bill, the Applicant only raised the preliminary issue of the "Indemnity Principle". It further stated there that without prejudice to the preliminary issue, the Applicant had various other general objections. Under Item 1 of the List, the Applicant objected the hourly rate of Mr. Lee claimed at $460 and suggested the rate of $200.00. The Applicant did not raise the argument on the Rule as a preliminary issue nor as one of the items under the general objections for determination.

13. Further, when I ruled against the Applicant on the preliminary issue, Mr. Cheung, the law costs draftsman who appeared for the Applicant at the taxation hearing, did not argue at all that despite my said ruling, the Respondent was not entitled to charge any profit costs for the work done by Mr. Lee under the Rule. In fact, they themselves suggested to allow the hourly rate of Mr. Lee at $200 in the List. Such sum coincides with the amount that the Court can allow a litigant in person to recover under Sub-rule (3) of the Rule if the taxing master is in the opinion that the litigant has not suffered any pecuniary loss in doing the work in which the costs relate. As such, I allowed the hourly rate of Mr. Lee at $200 without much resistance from those representing the Applicant.

14. The Applicant was all along legally represented in this action. I must take that the Applicant's legal representatives are fully aware of the provisions of the Rule and they chose not to raise the issue of the applicability of the Rule to this case in the List of Objection. More importantly, the Applicant herself conceded the sum of $200. She must be bound by the concession made and is not entitled to re-open the issue at the review.

15. To argue against the said concession made in the List, the Applicant's solicitors tried to explain the suggestion of $200 for the hourly rate of Mr. Lee as being an alternative ground in the general objection if they failed in the arguments on the preliminary issue. Such explanation does not convince me at all why I should allow the Applicant to re-open the issue at the review and to retract the concession made. The preliminary issue of "Indemnity Principle" and the argument on the applicability of the Rule to this case are separate and distinct legal issues. If the Applicant wishes to argue the latter, she should raise it specifically in the List of Objection. Failing so, I take that once I ruled against the Applicant on the preliminary issue, she herself conceded to pay the costs of Mr. Lee at $200 per hour. For reasons stated, I conclude that the Applicant's review on this ground must fail.

16. Because of my said conclusion, there is no need for me to go further to deal with the Applicant's contention on the applicability of the Rule to the present case in reliance of the Court of Appeal judgment in the Australian Telephone case. However, for sake of completeness in case my said ruling was wrong, I would also give my ruling on the Applicant's contention. For reasons stated below, I hold that the Applicant's contention on this ground of review also fails.

17. The Applicant relied solely on the Australian Telephone case to support her arguments the meaning of "litigant in person" under the Rule does not include a limited company represented by one of its director. The Hong Kong Civil Procedure 2002 Volume 1 at para. 62/App/57 also contains a passage to that effect. Mr. Chan for the Applicant submitted that the case shall equally apply to the Respondent which is an owners incorporation formed under the Building Management Ordinance since under Section 8, it provides that an owners incorporation is a body corporate capable of suing and being sued. Mr. Chan argued that if he succeeded on this issue, the Respondent was not entitled to recover any profit costs from his clients but can only recover out of pocket expenses such as travelling and photocopying expenses.

18. The Australian Telephone case was decided by Nazareth VP sitting as a single Judge of the Court of Appeal and one of the parties was not legally represented. Nazareth VP referred extensively in his Judgment the English Court of Appeal case of Jonathan Alexander Ltd. V. Proctor [1996] I WLR 518 and adopted the reasoning of Peter Gibson LJ and Buxton J and held that "litigant in person" under the Rule does not include a company represented by a director.

19. The Jonathan Alexander case turns on the interpretation of the meaning of "litigant in person" under the English Litigants in Person (Costs and Expenses) Act 1975 which does not have any counterpart in Hong Kong. Peter Gibson LJ said in his Judgment :

"A company is a persona ficta. As has been said of a company: 'It does not have a soul to be damned or a body to be kicked.' ... The crucial question is whether it can be said of the company so acting and appearing that it is a litigant in person for the purposes of the Act of 1975. ... In agreement with Mr. Lord, I would unhesitatingly answer that question in the negative. I do so for the following reasons (1) A litigant in person in ordinary parlance is party to litigation who represents himself by appearing in court himself. If someone other than himself represents him, then notwithstanding that that other person is his agent, that party is not a litigant in person. ... The company appears by a representative, its director, and hence it is not a litigant in person. ..."

20. The Rule itself does not define the meaning of "litigant in person". In fact, no part in the Rules of High Court contains any definition of "litigant in person". It is therefore doubtful whether the interpretation of meaning of "litigant in person" under the English 1975 Act in the Jonathan Alexander case applies equally to the interpretation of meaning of "litigant in person" under the Rule. In my view, in order to construe the meaning of "litigant in person", we should interpret it according to the context of the particular legal proceedings. In England, under Order 5 of their Rules of Supreme Court and according to established case laws, a company cannot appear in person unless there are special circumstances to justify and the Court can exercise its discretion to allow the directors of company to appear at trial. Otherwise, a limited company must be represented by a solicitor. That may explain why the English Court of Appeal attributed a restrictive definition of "litigant in person" to exclude limited company being represented by one of its directors.

21. Hong Kong has a different position. Under Order 5 Rule 6(2) of the Rules of High Court, an application can be made by a body corporate for leave to be represented by one of its directors. Upon good reasons shown by an affidavit, the court may grant leave for the director to represent the body corporate in the proceedings. In the District Court, the requirement is more relax. With the implementation of the new Rules of District Court in September 2000, a limited company can be represented by one of its directors once the director files an affidavit in compliance with the requirements under Order 5A. No leave is required. As such, a limited company has the right to be represented by one of its directors.

22. The Lands Tribunal does not have any rules to govern corporate representation. Under Section 10(5) of the Lands Tribunal Ordinance, the proceedings of the Tribunal shall be conducted with as much informality as is consistent with attaining justice. The current practice of the Tribunal does not have any procedural requirement for representation of a limited company by its director. A limited company or an owners incorporation can appear in the Tribunal by their representatives so long they can produce letters of authorisation from the company or the owners incorporation. In this case, the Presiding Officer all along allowed the Respondent to act in person by its authorised representative.

23. I am of the view that facts of the Australian Telephone case are distinguishable from those of the present case so that the decision will not be applicable to actions commenced in the Lands Tribunal. The Judgment of Nazareth VP causes injustice to those litigants who are body corporate without legal representation as opposed to those who are natural persons. A substantial number of the actions in the Lands Tribunal are commenced by or against owners incorporation who may have no legal representation. Adopting the Judgment of the Australian Telephone case in the Lands Tribunal means that those who can afford to engage lawyers can recover costs while those companies who have no means to engage lawyers cannot even recover their costs in preparing the case themselves. It clearly runs against the spirit of the Tribunal for informality. Thus, I decide not to follow it. Considering the above, I conclude that the Respondent was a litigant in person for the purpose of the action and the Rule.

24. My conclusion finds support from the Court of Appeal. In course of writing this Decision, coincidentally, the full bench of the Court of Appeal has the opportunity recently to consider the Judgment of Nazareth VP in the Australian Telephone case in the recent case of Typhoon 8 Research Ltd. v. Seapower Resources International Ltd. & others (CACV 2980/2001). The Judgment was handed down on 30 July 2002.

25. In the Typhoon 8 case, after the Court of Appeal decided to allow the appeal of the Plaintiff who was a limited company represented by its director, it has to decide how to make the costs order. Madam Justice Le Pichon commented that Nazareth VP had adopted a construction of 'litigant in person' which "made it inherently impossible for a company who is a party to a litigation and not legally represented from recovering costs." She further stated: "the injustice that arises from the interpretation adopted in the Australian Telephone case is such that unless constrained to do so, I would not follow it." Madam Justice Le Pichon find no basis for confining the Rule to litigants who are natural persons only and discriminating against corporations which are legal persons. In conclusion, the Court of Appeal held that when a director appears for a company as of right in the District Court and when he appears with leave in the High Court, in each case, he appears as the company. For the purposes of the Rule under the Rules of District Court and the Rules of High Court, the company is a "litigant in person".

26. In light of the recent Court of Appeal decision in the Typhoon 8 case, the Applicant must fail on her argument on the Rule.

The "Indemnity Principle"

27. The Applicant's solicitors argued that since as a matter of facts, I found that there was no agreement reached between the Respondent and Mr. Lee for payment of any fees for work carried out in the action, under the "Indemnity Principle", the Respondent should have no claim for profit costs against the Applicant. In support, the Applicant relied upon on Order 62 Rule 28A(1) which provides:

"On a taxation of the costs of litigant in person there may, subject to the provisions of this rule, be allowed such costs as would have allowed if the work and disbursements to which the costs related had been done or made by a solicitor on the litigant's behalf."

It was the contention of the Applicant's solicitors that on such wordings of the Rule, all legal principles applicable to costs of taxation to solicitors' costs shall also apply to the litigant in person.

28. The Applicant's contention is, in my view, totally misconceived. Sub-rule (1) has nothing to relate to the "Indemnity Principle". It only provides how the Court should assess the costs of a litigant in person so that a litigant in person can recover such costs for work done as if the same was done by a solicitor. For example, while a winning party can recover costs in drafting and mechanical preparation of a defence if it is represented by lawyers, a litigant in person can also recover such costs.

29. The annotation to para. 62/App/2 of the Hong Kong Civil Procedure 2002 states the "Indemnity Principle" as follows:-

"An overriding principle in all taxations inter partes is the indemnity principle: an order for costs between parties allow the receiving party to claim from the paying party only an indemnity in respect of costs recovered by the order. Receiving parties cannot therefore recover a sum in excess of their liability to their own solicitors. (Gundry v. Sainbury [1910] 1 KB 645) ..."

30. In Gundry v. Sanibury, the solicitors for the Plaintiff agreed verbally not to charge any costs. The English Court of Appeal held that the Plaintiff could not recover from the Defendant more costs than he was liable to pay his solicitor, inasmuch as party and party costs were awarded as an indemnity only. Fletcher Moulton LJ in his Judgment stated that the client who has entered into such an agreement shall not recover from the person liable to pay to him the costs a greater sum than he himself is under the agreement liable to pay to the solicitor. In the premises, it is quite clear that the "Indemnity Principle" applies to cases where parties are represented by lawyers seeking to recover costs against the losing party and has no application to cases where litigants are acting in person.

31. The Applicant's argument is against common sense. Further, it goes against the intention of Order 62 Rule 28A(3) which allows the litigant in person to recover no more than $200 per hour for work done in relation to the action if in the opinion of the taxing master, the litigant has not suffered any pecuniary loss in doing the work.

32. Accordingly, I maintain my ruling at the taxation hearing and this ground of the Applicant's review also fails.

Absurb Result?

33. The Applicant's solicitors argued that if the Respondent was allowed to recover profit costs, it would produce absurd result. Their concern is who can retain the profit costs. In my view, the Applicant's liability to pay the Respondent's costs is quite clear under the Order of the Tribunal dated 28 November 2000. The costs allowed by the Tribunal will be paid to the Respondent. Naturally, it should be the Respondent who will receive the taxed costs and the Tribunal has no duty to inquire into the eventual recipient and it should neither be the concern of the Applicant nor as a ground of review of the taxation.

34. The Applicant contended that the Respondent would be unjustly enriched as the costs would be paid to the Respondent. I cannot see any legal ground of such contention at all. It is clear from the court's records that Mr. Lee, the authorised representative and probably, other officers of the Respondent had spent considerable amount of their own time in preparing for the defence and eventually the trial. The whole purpose of the costs order is to compensate the Respondent for its work done in this case.

35. Further, leaving aside the provisions under the Rule and the "Indemnity Principle", as the Taxing Master, I have to give effect to the Order of the Presiding Officer that the Applicant has to pay 1/3 of the Respondent's costs of this action to be taxed if not agreed. While the Presiding Officer has wide discretion to award costs under Section 12 of the Lands Tribunal Ordinance, there is nothing in his Order which limits the Respondent's right to recover out of pocket expenses only. Costs as defined under Order 62 Rule 1 include fees, charges, disbursements, expenses and remuneration. In the premises, I cannot see any reason why the Respondent cannot recover both profit costs and disbursements from the Applicant under the terms of the said Order especially in view of the recent Judgment of the Court of Appeal in the Typhoon 8 case.

Conclusion

36. For reasons stated above, the Applicant's application for review fails in its entirety and is dismissed accordingly.

Costs

37. Costs should follow event. At the end of the taxation hearing, as the Applicant's law costs draftsman indicated a Calderbank offer was made prior to the taxation hearing, I made a costs order nisi for the costs of taxation. It now transpires that the Applicant's Calderbank offer was beaten. I therefore order that the Applicant do pay the costs of the taxation and the costs of the review to the Respondent. I have already taxed the Respondent's costs of taxation. Regarding the costs of the taxation review, I am in mind to assess gross sum if parties cannot agree the amount within the next 14 days. If necessary, parties can arrange a 15-minute appointment before me for such purpose.

38. One last matter is the costs of the adjournment of the original taxation review hearing on 20 June 2002 which include the costs of the short hearing before me on 4 June 2002. The Applicant asked for such costs in any event. The dispute arose when the Applicant's solicitors filed an Appointment for Review of Taxation with an estimated length of 1 hour. The Tribunal gave a date for the review hearing on 20 June 2002. After the Appointment was served on the Respondent's solicitors, it turned out that the Respondent's law costs draftsman was unable to attend the hearing on 20 June 2002. The Respondent's solicitors then wrote seeking to re-fix another date for the hearing. The Applicant's solicitors adopted an uncompromising attitude and maintained that they had no duty to consult the diary of the Respondent's solicitors before fixing the date. Eventually, the Respondent wrote to the Tribunal seeking directions. I therefore asked both parties to appear before me on 4 June 2002 for directions.

39. Before I heard the matter that day, both parties could finally agree to vacate the original date and re-fix the hearing on 17 June 2002 and I made the order accordingly with costs reserved. In my view, this kind of hearing is totally unnecessary if the parties are sensible enough to deal with the matter. Though there is no Practice Direction to require parties to consult each other when fixing a long hearing in the Lands Tribunal, it would be reasonable and sensible for the Applicant's solicitors to ask the other side to send their representative to attend the Tribunal to fix the hearing together. In fact, for summonses to be heard by Masters in the High Court and the District Court, under Practice Direction 14.2, if parties wish to list a hearing for more than 30 minutes, the summons should be brought first either on the Chambers List or to the Practice Master for an estimated length of the hearing and other directions. This will give parties a chance to consult each other on the estimated length of the hearing. On the other hand, the Respondent's solicitors after being served with the Appointment with hearing date that is inconvenient to them should, instead of just seeking to vacate the original hearing, propose other dates which are convenient to them. In the circumstances, I do not make any order for costs of and incidental to the application for adjournment of the original review hearing including the short hearing before me on 4 June 2002.

40. Finally, I have the parties' consent to circulate this Decision.

	(Simon Kwang)
	Acting Registrar
	Lands Tribunal

Representation:

Mr. C.W. Chan of Messrs. Chung & Kwan for the Applicant

Mr. David Leung, Law Costs Draftsman of Messrs. John Ku, Tam & Ho for the Respondent

LDBM000063/2000

LDBM 63/2000

香港特別行政區土地審裁處

建築物管理申請編號LDBM 2000年第63宗

 

	Leung Yin Ling	申請人
	訴
	The Incorporated Owners Of No.165, Wong Nai Chung Road	答辯人

 

主審法官: 周兆熊法官

宣判日期: 2000年11月28日

 

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判 決 書

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1. 申請人是香港黃泥涌道165號6樓的業主，而答辯人是黃泥涌道165號大廈的業主立案法團。

2. 2000年2月22日，申請人提出申請，要求本審裁處頒佈下列命令：

"1. An Order that the Respondent shall comply with the requirements in Section 27(1) and (1A) of the Ordinance with such necessary directions as this Honorable Tribunal shall deem fit, On The Grounds that the Respondent has defaulted in compliance with the said section 27(1) and (1A) for many years. For the purpose of this Application, the Applicant only applies for the compliance of the said Section for the past 6 years.

2. An Order that the Respondent do supply copies of the following documents to the Applicant for which written request thereof has been made to the Respondent by the 2 letters of Messrs. Chung & Kwan, Solicitors for the Applicant, to the Respondent dated 16th December 1999 and 25th January 2000 :-

(a) The income and expenditure accounts and balance sheets prepared under Section 27 (1) for the past 6 years, pursuant to Paragraph 3(a) of the Sixth Schedule of the Ordinance; and

(b) Summaries of the income and expenditure since January 1999 prepared under paragraph 2 of the Sixth Schedule of the Ordinance, pursuant to Paragraph 3 of the said Sixth Schedule.

3. An Order to vacate the registration of the Memorandum of Charge purportedly registered by the Respondent in the name of "165 Wong Nai Chung Road Owners Incorporation (H.K.)" in the Land Registry by Memorial No.6108707 against the property of the Applicant, namely 5th Floor, No.165 Wong Nai Chung Road......."

3. 《建築物管理條例》第27條有以下的規定：

“（1） 除第（3）款另有規定外，管理委員會須備存恰當的帳簿或帳項紀錄及其他財務紀錄，並在法團註冊日期起計最遲15個月內及其後每12個月製備收支表及資產負債表，兩者均須由管理委員會主席及秘書或司庫簽署，並在按照附表3第1（1）段召開的業主周年大會上提交法團省覽。

（1A）第（1）款所提述的收支表及資產負債表，須由法團聘請的會計師或法團藉業主大會通過的决議所批准的其他人審計，該會計師或其他獲批准的人，須核證該收支表及資產負債表為法團在關乎收支表及資產負債表期間的財務往來的真實及恰當紀錄，但受他認為適當的附帶聲明（如有的話）所規限。

（2） ...................

（3） 如有違反第（1）款的規定，管理委員會的每一委員均屬犯罪，一經定罪，可處罰款$2,000，除非證明

(a) 犯罪未獲其同意或默許，且

(b) 在該情況下已盡其應盡的努力，以防止罪行的發生。

（4） ...................

（5） ...................”

4. 針對首2項的申請，答辯人有下列的抗辯：

“（1）法團每月有收支表公佈貼出，1999年度資產報告表，收支年報表，均己公佈貼出（附呈為證）。關於賬要送會計審核，梁燕玲十年不交費，法團收入短絀，希梁燕玲出此費。

（2）法團歡迎所有業主查賬，並張貼佈告通知，未見梁燕玲前來，如現要副本，請先文影印工本費；

反對通知書內附有下列文件：

（1）香港黃泥涌道165號 - 167號業主立案法團資產報告表（1999年12月31日）

（2）香港黃泥涌道165 - 167號業主立案法團收支報告表（本年度由1999年1月1日至1999年12月31日止年報）

5. 上述兩項文件內並無任何紀錄顯示這二份文件曾由第（1A）款所指明的人審計或核證在有關期間為法團的財務往來的真實及恰當的紀錄。

6. 黃泥涌167號是另一業主立案法團。答辯人的代表李寶強先生在本案提堂時告知本庭，在過往，165號與167號的兩個業主立案法團，都是一同舉行業主大會，而165號及167號兩座大廈的收支，都是混合計算的。在所有呈堂的証物中，亦祇有一份黃泥涌道165號及167號業主立案法團的1998年週年年會會議記錄，紀錄的第（5）項顯示大會通過1997年4月至1998年3月的收支表，但此年會是兩個法團共同舉行的。

7. 1999年12月16日，鍾沛林律師行（代表申請人的律師行）致函予當時代表答辯人的律師行（曾陳胡律師行）要求答辯人向申請人提供下列文件的副本：

"(a) The income and expenditure accounts and balance sheets prepared under Section 27(1)for the past 6 years, pursuant to paragraph 3 (a) of the sixth schedule of the Ordinance.

(b) Summaries of the income and expenditure since January 1999 prepared under paragraph 2 of the Sixth Schedule of the Ordinance, pursuant to Paragraph 3 of the said Sixth schedule."

8. 2000年10月18日，鍾沛林律師行收到答辯人以下的文件：

（甲）1996年至1999年之核數報告；

（乙）1996年至1999年之賬目。

9. 該律師行於11月7日致函知會答辯人，基於下述原因，它不能接受上述文件內容：

“（一）由上次上庭至今，法團並沒有召開業主大會，通過非專業核數師作出核數報名，及審核人是馮妙華。

（二）馮妙華並沒有在核數報告上簽署。

（三）核數報告並沒有根據法例由立席及秘書或司庫簽署。

（四）核數報告亦無註明簽署日期。

（五）為何96, 97及98年度之銀行滾存均是同一數字$1,008.50。另一方面，核數報告並沒有列出公共電錶按金及維修基金。

（六）至於賬目方面，亦沒有法團人員加簽或蓋章，以茲確認。”

10. 上述的証據顯示答辯人並沒有按第27條備存法團的帳簿或帳項紀錄或其他財務紀錄。答辯人現時所管有的帳簿或帳項紀錄，亦不符合第27條的規定。

11. 答辯人是於1987年5月27日成立的，根據27條的規定，從該日計起答辯人須在其後每12個月製備收支表及資產負債表，兩者均須由管理委員會主席及秘書或司庫簽署，並在業主周年大會提交法團省覧；兩者又必須由（1A）款所提述的人審計和核證二者是在有關期間為法團的財務往來的真實及恰當紀錄。

12. 申請人的第1項申請，是要求本席命令答辯人在以往6年，遵守第27（1）（1A）條的規定，但第（1）及（1A）的條款對其所指明的作為，是有時間上的規限的。以往的6年己過去，答辯人是不能在現時作出它在以往6年期間所須作出的行為。本席根本上不能下令答辯人在現時履行在過往6年期間遵守第27條的規定。答辯人有可能己違反第27（1）條的規定，因而犯罪，但這是另一問題。申請人的第1項申請是不恰當的。

13. 由於答辯人並無按第27條行事，所以它並無第2項申請所提述的文件，它亦因此無可能提供該些文件的副本。第2項的申請亦是不恰當的。

14. 1994年9月2日，基於申請人拖欠7400元管理費的原故，答辯人在土地註冊處針對的物業註冊一項扣押令。

15. 申請人質欵答辯人所收的管理費是否合法，並否認她有欠繳管理費。與訟雙方己在2000年初就欠繳管理費一事達成和解協議，但雙方卻未有就解除扣押令一事作出任何商討。

16. 2000年1月25日，鍾沛林律師行致函答辯人，要求它盡快解除押記；如它在14天內不順應它的要求，它便會採取法律行動。

17. 建築物管理條例第19條有以下的規定：

“（1）如公契規定，業主如沒有繳付公契所訂應付的任何款項，某人即可將該業主的土地權益出售，或於工地註冊處針對該業主的權業註冊一項押記，則儘管公契的條文有所規定，法團而非該人亦可循同樣方式，受同樣條件的限制，行使上述出售土地權益或註冊押記的權力，猶如法團乃公契所提述的人一樣。”

（原文無劃線）

18. 165號大廈的公契並無賦予答辯人針對該大廈的業主在土地註冊處註冊押記的權力，故此答辯人於1994年9月2日針對申請人的物業而註冊的押記是毫無法律根據的，故此本席裁定第3項申請得直。

19. 本席頒佈下列的命令：

（1） 首2項申請被撤銷。

（2） 第3項申請得直，答辯人須盡快解除在土地註冊處針對申請人物業的押記。

20. 有關本案的訟費，本席頒下臨時的命令：申請人須支付答辯人本案1/3的訟費，如與訟雙方未能議定訟費的款額，則該款額由法庭訂定，如與訟雙方不在14天內對此臨時訟費命令向本席提出申請，則此命令作實。

 

 

 

申請人：由鍾沛林律師行代表。

答辯人：由李寶強先生代表。