Case Detail

LDRW 49/2003

IN THE LANDS TRIBUNAL OFTHE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Railways Ordinance Application No. LDRW 49 of 2003

_______________

Between

	Au Siu Foo	Applicant
	and
	The Secretary for Transport (now know as the Secretary for the Environment, Transport and Works)	Respondent

_______________

Coram:

H.H. Judge Chow, Presiding Officer, Lands Tribunal

Date of Hearing: 21^st October, 2004

Date of Judgment: 10^th October, 2004

_________

Judgment

_________

1. On 27^th August, 2004, this Tribunal made an order nisi that the parties in these proceedings do bear their respective legal costs arising from this application. The Applicant applied to this Tribunal to vary this order, and asked the Tribunal to apply the decision of Yuen Yiu Kwong v. Chan Kwok Chuen & others [2003] 21-KLD 70, and to award full costs of this action to the Applicant. The Applicant quoted the following passage from that case:-

“In the present case, although the amount I awarded to the plaintiff was far less than what the plaintiff would expect, I cannot regard the net amount awarded being in excess of HK$22,000 should be regarded as nominal damages. Furthermore, the defendants resisted the plaintiff’s claim both on liability and quantum. The plaintiff must be entitled to bring this action to establish his right to damages against the defendants. Accordingly, I do not think that this is a case where I could regard the defendants as being the successful party.”

2. There is no principle established in the above passage. Therefore it does not provide any assistance to this Tribunal to solve the present issue on costs.

3. According to section 12 of the Lands Tribunal Ordinance, this Tribunal has a discretion to award costs.

4. The application is for determination of the amount of professional fees under section 10(2)(e)(ii) of the Lands Resumption Ordinance, Cap. 124 (“the Ordinance”). Under section 6(2A) of the Ordinance, the Respondent is obliged to pay the costs or remuneration reasonably incurred or paid by the Applicant in employing persons to act in a professional capacity in connection with the compensation claim, which was settled at $740,000 (see paragraph 2 of the Judgment handed down on 27^th August 2004). Section 6(2A) provides: +

“Where, in the case of land resumed under an order made under section 3 on or after the commencement of the Crown Lands Resumption (Amendment)

Ordinance 1984 (5 of 1984), an offer of compensation is made or a claim for compensation is submitted to or by any person under this section, such offer may provide for the payment by the Authority to that person of, or such claim may include a claim for, any costs or remuneration reasonably incurred or paid by him in employing persons to act in a professional capacity in connection with such offer or claim.” (Underlines provided)

5. The Applicant’s claim comprise a total of 63 items (some had sub-items) plus an item on disbursement. Some of the items were withdrawn during the progress of the hearing and some were revised. Of the 63 items (inclusive of sub-items) ruled by the Tribunal, 15 were disallowed and 15 items were assessed downwards. The rest were allowed in full (but mostly after the Applicant had reduced the amounts claimed for the items in the course of the hearing).

6. The amount claimed was $377,400 (including $1,500 cost of reimbursement) but the amount awarded was $37,800, which was about 10% of the amount claimed, the amount claimed. It is clear that the Applicant grossly inflated his claim. Because of this inflation, the Tribunal had to spend a lot of time to examine in detail each item of work done, in order to decide whether it was reasonably incurred. This Tribunal finds that the Applicant conducted his claim in an grossly unreasonable way.

7. The Applicant in its within submission claimed that the time spent on unsuccessful items is 2.5 to 3 hours, but this allegation is not supported by particulars. No doubt such estimation is on the very conservative side.

8. The Tribunal finds that there is no good reason to disturb the order nisi; therefore this Tribunal makes it absolute forthwith.

Costs

9. The costs relating to this application be costs in the cause of this action.

(H.H. Judge Chow)
Presiding Officer,
Lands Tribunal

The Applicant : represented by Mr. Simon H.W. Lam, instructed by M/S Chan & Tsui, Solicitors for the Applicant.

The Respondent: represented by Mr. Simon Lam, instructed by the Secretary for Justice for the Respondent.

LDRW000049/2003

LDRW 49/2003

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Railways Ordinance Application No. LDRW 49 of 2003

_________________

BETWEEN
	Au Siu Foo	Applicant

	AND

	The Secretary for Transport (now known as the Secretary for the Environment, Transport and Works)	Respondent

_________________

Coram:	H.H. Judge CHOW, Presiding Officer of the Lands Tribunal
	Member C.Y. LAM, Member of the Lands Tribunal


Dates of Hearing:	10 June 2004, 11 June 2004, 12 July 2004, 13 July 2004, 21 July 2004 & 29 July 2004
Date of Judgment:	27 August 2004

_________________

J U D G M E N T

___________________

Introduction

1. This is an application for determination of the amount of professional fees under section 10(2)(e)(ii) of the Lands Resumption Ordinance, Cap 124. The Applicant was the owner of a property resumed by the Respondent, which is the Secretary for Transport, under the Railways Ordinance, Cap 519. The property was resumed to make way for the construction of the Phase I West Rail between Tuen Mun and West Kowloon.

The Background

2. The property reverted to the Government on 2nd October 1999 by virtue of a Notice of Resumption issued under the above Railways Ordinance. A compensation claim was forwarded to the Government on 24th December 1999. Initially, the Applicant asked for a sum of $1,150,000. After a series of negotiation, the compensation was finally settled at $740,000 and pursuant to section 6(2A) of the Ordinance, the Government is obliged to pay the costs or remuneration reasonably incurred or paid by the Applicant in employing persons to act in a professional capacity in connection with the compensation claim. Section 6 (2A) of the Ordinance so states as follows: -

"Where, in the case of land resumed under an order made under section 3 on or after the commencement of the Crown Lands Resumption (Amendment) Ordinance 1984 (5 of 1984), an offer of compensation is made or a claim for compensation is submitted to or by any person under this section, such offer may provide for the payment by the Authority to that person of, or such claim may include a claim for, any costs or remuneration reasonably incurred or paid by him in employing persons to act in a professional capacity in connection with such offer or claim."

3. The fees claimed consist of two parts, one being the surveyor fee of $377,400 ($1,500 of which being the cost of disbursement) and the other, the solicitor fee in the sum of $153,550. On the first day of the hearings, the solicitor fee was settled at $26,575 with consent summons signed and a Tribunal Order granted in terms thereof. The Tribunal is required to adjudge only on the surveyor fee and the amount of disbursement.

The Property Resumed

4. The resumed property was located in Tsuen Wan, known as Unit 9, 26/F and Roof No.9, Block A, Wah Kai Industrial Centre. It was 114.4 sq. m. in saleable floor area with a similar sized roof for the exclusive use of the Applicant.

Basic Issues of Claim

5. Before the Tribunal moves to tackle the amount claimed by the Applicant, it is necessary to address a few issues raised. These are firstly the Applicant's request to strike out (or attach little weight) the expert evidence of Mr. Lawrence Pang who acts for the Respondent as expert witness, secondly, whether the surveyor fee should be awarded on time charge or it should follow the Hong Kong Institute of Surveyors Scale (to be known as HKIS Scale) and thirdly, the charging rate of Mr. Foo, the Applicant's expert witness.

(a) Striking-out
The Applicant's main concern was that Mr. Pang who is a surveyor in profession without any legal background had commented or advocated on a number of issues from legal view-point (quoting mainly Canadian authorities) or outside his area of expertise. Other factors leading to the Applicant's request included Mr. Pang's evasive and contradicting manner in giving evidence.

We are of the view that the Applicant's worry is inordinate. The two parties were represented by counsels and solicitors. If any of Mr. Pang's views given from legal viewpoint erred, the counsels in court would have corrected it for the Tribunal. The Tribunal's decision would not be unduly influenced by Mr. Pang. For any view of Mr. Pang given outside his area of expertise, the Tribunal should be able to dispose it appropriately with Mr. Foo's assistance. We do not accept that Mr. Pang's evidence should be struck out. We dismiss the Applicant's application in this regard.
(b) Time Charge
The Respondent considered the HKIS Scale appropriate for calculation of the surveyor fee as in the real market, surveyors seldom charge on an hourly basis. This does not surprise the Tribunal, as it is easier for the surveyors' clients to manage their budgets, a lot simpler for the surveyors to prepare the bills and may have fewer disputes on the final sum payable. The method to so charge, however, is not destitute of disadvantage. It is not the fair way to remunerate the surveyors or pay for the work done. Whilst we have no objection to the method of how the work should be billed so long as there is agreement between the surveyors and their clients, we have to resort to the approach fair to the two parties, albeit it being clumsy, as and when there is a dispute. We do not see that there should be a departure from the rulings laid down in Chan Kwong Man v Secretary for Transport [LDMR 36/2000] and Wu Wai Kuen v Secretary for Transport [LDMR 37/2000].

(c) Charging Rate
The HKIS Scale provides for a senior director a charging rate of $3,000 per hour. Mr. Foo professed himself to be a senior director status having 10 years experience in the profession and being the director of a surveyor firm. The rate applicable therefore is $3,000 per hour. The Respondent held the view that the appropriate hourly rate should be $2,000 as at the material time.

7. There is no definition set down under the HKIS Scale as to the qualification of a senior director. By the hierarchy set out therein, a senior director must be very senior in the career path of a professional surveyor. He/she must have a wide and comprehensive horizon about the profession, be able to handle more complicated issues than straightforward compensation cases, and be capable of giving leading professional views. He or she must be a member of the senior management of a General Practice surveying firm of a wide spectrum of General Practice expertise.

8. With this understanding in our mind, we share the Respondent's view that Mr. Foo should be remunerated at the hourly rate of $2,000. Whilst we agree that in ten years' time, a surveyor may climb up to the post of senior director in a firm of the above scale, we do not accept the Applicant's view, as Mr. Foo had not been a full time surveyor in the period up to October 1999 since qualified as a Chartered Surveyor. He worked as a barrister for some time and for the rest of the time as a solicitor in parallel. The scale of Mr. Foo's firm limited his acquisition of experience and the compensation case related to the present application is straightforward in nature. He did not display good knowledge regarding certain issues involved in the related compensation case. For example, he did not seem to know well regarding the prescribed format of building plans submitted under the Building Ordinance, the purview of the Deed of Mutual Covenant, and the terms used in resumption cases.

The Items In Dispute

9. The Applicant has itemized his claim on Pages 28 to 40 of the Pleading Bundle. There are a total of 63 items plus an item on disbursement. Some of the items were withdrawn during the progress of the hearings, and some revised to avoid duplication with other claims. The Respondent gave its views on the claim. Only those not withdrawn now receive the ruling of the Tribunal as hereunder: -

Item	Tribunal's View	No. of Hour Approved

1	It is fair to remunerate the full time expended for the inspection on site excluding the travelling time.	1.6
2	Agreed that it is a simple standard letter common to all cases. The time expended is mainly for filling out a standard form and should be spread among all cases.	0.1
3	Agreed that the surveyor should have a fair understanding of the contents of the offer letter and regarding the terms used therein. The consultation with solicitors is also unnecessary.	0.5
4	The need for legal advice is not established.	0
5	Not the role-play of the surveyor.	0
6	Not the role-play of the surveyor.	0
7	Not in dispute.	0.3
8	Not the role-play of the surveyor.	0
9	Not in dispute.	0.3
11	Not in dispute.	0.1
12	Not in dispute.	0.1
13A	Agreed to the revised time indicated.	0.1
13B	Same as above.	0.1
13C	Same as above.	0.1
13D	Reasonable.	0.3
13E	Agreed that it should be obtained from the approved building plans (strictly not from the brochure plans) that should have contained the floor area or the necessary data for its (the floor area) calculation. It is a prescribed requirement to show these data for all the plans submitted to the Building and Land Authority for approval. If the surveyor had bothered to view the plans, he should have found both or either of them. The need of having a meeting with the architect to ascertain the floor area is superfluous. It simply shows the surveyor's inexperience.	0.2
13F	Research work and basic analysis, which could be dealt with by a technical assistant. Not much professional input should be from the surveyor.	0.5
13G	Unnecessary research for a simple and straightforward case.	0
13H	Work simple and straightforward in nature. Time claimed not wholly justified.	1
13I	Negligible. In fact, it is clerical work.	0
15 & 16	The need is questionable.	0
18	Agreed though the time expended may be questionable.	0.2
20	The need does not arise.	0
21	Not the surveyor's role and concern.	0
22 &23	Not the surveyor's role and concern.	0
24A	Generally, the surveyor should have a fair knowledge of the Ordinance concerned but the need may be justified in case of a green surveyor.	0.2
24B	Agreed that some part of the work should have been done when preparing the first report and for other similar cases.	1.5
24C	A better report than the first one. Agreed with the Respondent that there was some kind of juggling to justify the amount of claim.	1.5
24D	Negligible. In fact, pure clerical input.	0
27	Agreed though the justification is questionable.	0.1
28	A few brief words on the way forward are justified.	0.2
29	The reply from Government is self-explanatory. The need for drafting detailed advice does not arise.	0
30	A few brief words on the way forward are justified.	0.3
31	A counter proposal to Government is required. Whether $0.85M is justified is a matter of the surveyor's professional opinion.	0.5
33	A brief advice to the client and solicitors should suffice. The reply from Government is self-explanatory. However, the excess in time expended is marginal.	0.4
34	There is the need to re-act on the refusal. It is difficult to form the view to dismiss the value of the report. With the substantial amount of work done for the previous reports, this report should not take time to prepare.	1
36	A brief advice to the client and solicitors would suffice. The reply from Government is self-explanatory. The excess, however, is not obvious.	0.3
37	The reply from Government is self-explanatory. The need for drafting detailed advice does not arise.	0
38	The need is dubious. It is unusual that undivided shares for communal toilet are allotted and sold to individual owners. The investigation should have been made at the time of preparing the first report if the Applicant indeed owns an undivided share. The land registry records should be helpful when checked for compiling the first report.	0
41	Agreed that the surveyor needs to study the judgement. Any excess in the time expended is marginal.	0.7
42	A simple letter, which can be substituted by a phone call to solicit the client's view.	0.2
43	A counter proposal to Government by revising the claim on the basis of Poon Chi Man& Ho Sai Mui v Secretary of Transport [LDMR 42/2000] is all that is required. There is no need for a report as such.	0.5
45	No need for any detailed discussions.	0.5
46	Agreed to the need for the work done.	0.1
47 & 48	Unnecessary work performed. The client's conveyancing documents should have contained the information and such should have been revealed when investigating the extent of the client's interest for preparation of the first report.	0
49, 50 & 51	Agreed to the need for the work done.	0.5
52, 53, 54, 55, & 56	New issue but not complicated. Claim, which eventually entertained by Government, indicates its value to the client. Government's ground of accepting the claim is nevertheless dubious.	2.2
57, 58, 59, 60, 61 & 62	Agreed.	1.2
63	It is part of the work done regardless whether it is for litigation or issued to the client. The records should have been there and most of the work done is somewhat clerical in nature.	1.5

Total = 18.9

The fee payable, based on the hourly rate of $2,000 for a total of 18.9 hours, is $37,800.

Order

10. We hereby order the Respondent to pay the Applicant the surveyor fee of $37,800 and in addition, the disbursement at $1,500. We make an order nisi, to be made absolute in 14 days' time, that the two parties do bear their respective legal costs arising from this application.

H.H. Judge CHOW	C.Y. LAM
Presiding Officer	Member
Lands Tribunal	Lands Tribunal

Representation:

Mr. Simon H.W. LAM instructed by M/S Chan & Tsu, for the Applicant

Mr. Simon LAM instructed by Secretary for Justice, for the Respondent

Renewed application for leave to appeal the costs order by the application refused. Please refer to HCMP235/2005 dated 29 June 2005

AU SIU FOO v. THE SECRETARY FOR TRANSPORT

Related cases with same parties

Files (3)