RE NIMBLE HOLDINGS CO LTD formerly known as THE GRANDE HOLDINGS LTD
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HCCW 177/2011
[2026] HKCFI 1445
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
COMPANIES WINDING-UP PROCEEDINGS NO. 177 OF 2011
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| IN THE MATTER OF the Companies (Winding Up and Miscellaneous Provisions) Ordinance, Chapter 32 of the Laws of Hong Kong | |
and | |
| IN THE MATTER OF NIMBLE HOLDINGS COMPANY LIMITED (敏捷控股有限公司) formerly known as THE GRANDE HOLDINGS LIMITED (嘉域集團有限公司) |
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| Before: | Recorder Eva Sit SC in Chambers |
| Date of Hearing: | 3 December 2025 |
| Date of Decision: | 11 March 2026 |
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DECISION
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1. This is an appeal against the order of Master Hui made on 27 May 2025, whereby the learned Master refused to set aside the “Notice of Appointment for Taxation / Determination of the Bill of Provisional Liquidators” issued on 5 March 2025 with respect to invoice number 2412089 (“Bill #14”) of the (former) joint and several provisional liquidators[1] (“PLs”) of Nimble Holdings Company Limited (formerly known as The Grande Holdings Limited, “Company”). By Bill #14, the PLs claim their own time costs of HK$3,722,341.50 incurred in complying with 2 orders for discovery made by the court in the context of an application by the PLs for remuneration.
2. While this appeal was pending, the determination of Bill #14 proceeded, and on 26 November 2025 Master Hui allowed Bill #14 in full. As far as I am aware there is no appeal against Master’s decision on 26 November 2025.
3. As I will explain below, notwithstanding the above I consider that I should continue to deal with this appeal, for in issue is a point of law of some importance, namely whether there is basis for the PLs to claim remuneration for work done in furtherance of their own remuneration application.
Background
4. There is considerable history in this matter. The facts set out below are mostly taken from various judgments and decisions in these proceedings, including the Judgment of Deputy High Court Judge Le Pichon dated 12 September 2013 [2013] 4 HKLRD 353, the Ruling of Harris J dated 9 May 2016, the Judgment of Harris J dated 24 January 2018 [2018] 3 HKC 412 (“2018 Judgment”), and the Decision of Harris J dated 23 February 2022 [2022] 1 HKLRD 1317.
5. The Company (then known as The Grande Holdings Limited) was listed on Main Board of The Stock Exchange of Hong Kong Limited (“HKEx”). On 30 May 2011, Sino Bright Enterprises Co Ltd (“Sino Bright”) presented a petition to wind up the Company, and trading in the Company’s shares suspended. On 31 May 2011 the PLs were appointed over the Company, and they were authorized to consider and report on the prospect of restructuring the Company. The appointment order provided that subject to the approval of the court the PLs’ costs be assessed on a time-cost basis and paid out of the assets of the Company.
6. The Company was wound up by court on 12 September 2013. It appears that the PLs remained in office as such by virtue of section 194(1)(aa) of the Companies (Winding up and Miscellaneous Provisions) Ordinance (Cap.32) (“Cap.32”) and no liquidators were ever appointed. In the meantime a number of resumption proposals were submitted to the HKEx on behalf of the Company, the third of which was successful. On 15 April 2016 Harris J sanctioned a scheme of arrangement compromising the debts of the Company, following which and upon fulfilling the conditions for resumption of trading, trading of the Company’s shares resumed on HKEx.
7. On 9 May 2016, Harris J granted a permanent stay of the winding up of the Company, and on 26 May 2016 the PLs were released and discharged.
8. As mentioned above, the PLs were authorized to consider and report on the prospect of restructuring the Company. That the PLs were expected to carry out a considerable amount of work to restructure the Company was also borne out by an Amended Restructuring Agreement dated 14 December 2015 between the PLs, the Company, Sino Bright and McVitie Group Holdings Limited which provided (inter alia) that the costs and expenses of the Company and fees of the PLs up to 16 December 2013 in and about the finalization and/or implementation of the restructuring proposal be capped at HK$45 million, of which the Company and Sino Bright would each be responsible in part, and that if such costs and fees could not be agreed they would be subject to taxation by reference to the “Procedural Guides for Taxation and Determination of Bills in Liquidation Process” (“Procedural Guides”) and the “Maxwell principles” (for which see below).
9. The PLs’ fees were divided into 2 parts, those that related to the restructuring of the Company (“Restructuring Costs”) and those that related to the PLs’ activities that did not relate to the restructuring (“Liquidation Costs”).
(1) It appears that the PLs have put forward a total of 14 bills (“Bills”).
(2) Eight of those Bills (Bills #1 to 3, 5, 7 to 10) concerned Liquidation Costs, and had been assessed by Master between 23 April 2014 to 30 August 2016 at a total sum of HK$98,413,135.33.
(3) The following Bills concerned Restructuring Costs:
Bill Package (Restructuring Costs) Date Submitted Claim (HK$) #4 1st Taxation Package 22 December 2014 $9,699,631.95 #6 2nd Taxation Package 25 January 2016 $20,164,310.39 #12 3rd Taxation Package 6 October 2016 $18,941,804.89
Total $48,805,747.23 (4) There is no information available to me as to what Bill #11 was concerned with. As to Bill #13, it was issued on 11 June 2024, but it is not clear whether it related to Restructuring Costs or Liquidation Costs.
(5) Bill #14 was issued on 5 March 2025 and is the subject matter of this appeal. I will return to this below.
(6) By early 2018, the PLs had received approximately HK$98.1 million in respect of Liquidation Costs; the PLs and their agents had incurred at least HK$166.5 million in costs (including both Restructuring Costs and Liquidation Costs), of which HK$158.7 million had already been paid and received.
10. An additional context, as identified by Harris J in his Decision [2022] 1 HKLRD 1317, was that there was animosity from those behind the Company towards the PLs; that rather unusually, those behind the Company retained control of it after it had been restructured; and that animosity had led to increasing confrontation, the most extreme being Sino Bright’s judicial review application in 2019 of the Secretary for Justice’s decision not to prosecute the PLs for what was said to be an attempt to pervert the course of justice.
11. Going back to Bill #14, it relates to the Restructuring Costs under Bill #4 (described as the “1st Taxation Package”) in the following manner.
12. As can be seen from paragraph 9(3) above, the 1st Taxation Package was submitted by the PLs on 22 December 2014 and sought Restructuring Costs of HK9,699,631.95. The assessment of the 1st Taxation Package was contested by the Company and Sino Bright (each being liable in part pursuant to the agreement set out in paragraph 8 above).
13. For the purpose of such assessment and as directed by Master Hui, the PLs prepared their time costs entries in Excel format, which (inter alia) identified the time charges claimed and described the activities that incurred the time charges, which appeared to be in line with the Procedural Guides.
14. The Procedural Guides were introduced by the general direction of Kwan J (as Kwan VP then was) under rule 6(a) of the Companies (Winding-up) Rules (“WUR”) which took effect on 3 May 2004.[2] They comprised 2 guides, one applicable to liquidators and provisional liquidators, and the other to their agents including solicitors. They set out the way in which material should be presented to the court in order to enable the court to approach the assessment of remuneration of office holders in the majority of cases. They adopt a “practical and pragmatic approach” to streamline the documents required to be submitted for the assessment of the office holders’ fees, to ensure that a sufficient amount of information is placed before the court and that the court would not be overburdened with unnecessary documents. Under the Procedural Guides, supporting documents are not required to be produced, and will be called for only if the taxing master needs to query any points.[3]
15. In the course of the assessment of the 1st Taxation Package, on application by Sino Bright and the Company respectively, on 4 May 2017 and 11 April 2019 Master Hui directed the PLs to give discovery of documents relating to time entries in the 1st Taxation Package sought (“1st Discovery Order” and “2nd Discovery Order”). Master Hui reserved costs on the 1st Discovery Order and awarded costs on the 2nd Discovery Order to the Company.
16. The PLs appealed against the 1st Discovery Order. The appeal was dismissed by Harris J in the 2018 Judgment, where the learned Judge held that:
(1) The PLs are fiduciaries as regards the Company and Sino Bright and the “Maxwell principles” applied to the assessment of the PLs’ fees (§9).
(2) The “Maxwell principles” and the procedures in the Procedural Guides are flexible and their precise application may vary depending on the facts of each case. While the Procedural Guides do not require production of contemporaneous documents evidencing the work described in the narrative, there is nothing to prevent a Master who thinks that he would be assisted by seeing some contemporaneous material to require its production. This is consistent with the PLs’ duty to account and to justify the remuneration they seek to be paid (§§12-13).
(3) As to the PLs’ complaint that the discovery sought was oppressive (the PLs estimated the documents consisted of approximately 90 3-inch box files although they were largely in electronic form) and expensive (the PLs’ estimated costs of providing them was approximately HK$2 million at that time), (i) this must be seen in the context of the special position of the PLs as fiduciaries seeking payment from those to whom they owe those duties; (ii) the level of fees is relevant to considering whether the request is oppressive and requires work and additional costs out of proportion to the sums involved which, given the very high level of fees involved in this case, the court did not consider to be oppressive; and (iii) in determining the costs of the assessment, the Master could have regard to the extent of work that the PLs were put to and whether it is appropriate that the cost of such work be paid by the Company or Sino Bright (§§15-17).
17. The PLs’ evidence is that in compliance with the 1st and 2nd Discovery Orders, they collated and produced to the Company and Sino Bright a large volume of documents, including (i) over 4,000 documents referred to in the time entries in the 1st Taxation Package; (ii) various supporting documents relating to other taxation packages; and (iii) raw time costs estimate for the entire period of the PLs’ appointment. It is clear from the PLs’ evidence that the disclosed documents were pre-existing and part of the PLs’ records – their main task was to retrieve the documents against the relevant requests made in the schedules the subject of the 1st and 2nd Discovery Orders. The PLs have also prepared 2 schedules setting out whether a specific document requested by Sino Bright.
18. Assessment of the 1st Taxation Package was conducted by Master Hui on the papers.[4] By then the amount claimed was reduced to HK$5,266,242.90, being the fees of the PLs, as the fees of the PLs’ agents had already been disposed of previously. By his order dated 13 June 2022, Master Hui (inter alia):
(1) reduced the PLs’ fees by 5%; and
(2) ordered that the Company and Sino Bright pay costs of and occasioned by the taxation of the 1st Taxation Package including all costs reserved to the PLs (which was varied on 30 September 2022 to provide for a higher basis of assessment and interest to reflect the fact that the sanctioned offer made by the Company and Sino Bright failed to beat the order made on 13 June 2022) (“Taxation Costs Order”).
19. With respect to the Taxation Costs Order, on 6 September 2023 the PLs provided a costs bill for HK$4,813,932, which referenced costs of their solicitors and law costs draftsman, including costs of solicitors incurred in respect of giving discovery under the 1st and 2nd Discovery Orders.[5] Such costs were ultimately settled by the parties by agreement at HK$2.7 million, and the same has been paid.
20. By letter dated 6 September 2023, the PLs’ solicitors (“LK”) stated (inter alia) that the PLs had incurred considerable costs in complying with the 1st and 2nd Discovery Orders and would be claiming those costs separately.
21. The PLs’ intention to claim their own fees incurred in complying with the 1st and 2nd Discovery Orders was picked up again in LK’s letter one year later, on 6 September 2024. Following that, throughout December 2024 there were correspondence between the parties’ solicitors debating on the basis or lack thereof for the PLs to claim such fees.
Bill #14 and the Decision under Appeal
22. On 5 March 2025, the PLs issued Bill #14 claiming fees of HK$3,722,341.50 for complying with the 1st and 2nd Discovery Orders.
(1) This amount represents (i) 1,050.50 hours for preparing, gathering and reviewing the documents required to be produced under the 1st Discovery Order, and (ii) 46.90 hours for gather and providing documents or information and the raw time entries in Excel format required to be produced under the 2nd Discovery Order.
(2) The PLs stated that the costs of preparing Bill #14 in the sum of HK$282,407.20 would be written off.
23. A Notice of Appointment was issued together with Bill #14 (as is required under the Procedural Guides) on 5 March 2025. On 9 May 2025 the Company issued a summons to set aside the aforesaid Notice of Appointment.
24. On 27 May 2025, the Company’s summons came before Master Hui for its first hearing. At that hearing, Master dismissed the Company’s summons on the basis that the PLs’ costs of discovery was part and parcel of the costs of taxation of the 1st Taxation Package, and since he has awarded the PLs costs of taxation under the Taxation Costs Order, the PLs are entitled to claim those discovery costs. This is the order the subject of this appeal.
25. On 9 June 2025, the Company filed its notice of appeal against Master’s order of 27 May 2025.
26. Meanwhile, Bill #14 proceeded to assessment on 26 November 2025 before Master Hui. The parties made submissions (as a preliminary issue) on whether the PLs could claim for their own time costs under the Taxation Costs Order, and the Company’s submissions were rejected by Master. Master then proceeded to assess Bill #14 and allowed the PLs’ fees in full.
Parties’ Contentions
27. In this appeal, the parties’ respective contentions are as follows.
28. The Company argues that the Master has erred as there is no proper legal basis for the PLs to claim their fees under Bill #14, for the following reasons:
(1) The Taxation Costs Order was made under section 52A of the High Court Ordinance (Cap.4) and Order 62, rule 3 of the Rules of the High Court (“RHC”) , which together provide an exhaustive statutory regime for the award of all costs in all circumstances, and under this regime it is well established that save for 2 limited exceptions,[6] a legally represented litigant can only claim his legal costs but not costs of his own time spent.
(2) It was an abuse of process for the PLs to submit 2 bills (see paragraphs 19 and 22 above) to be taxed under the Taxation Costs Order.
(3) As the PLs are claiming remuneration, that falls under Cap.32 section 196(2), which on its proper interpretation only applies to work which the PLs carry out during the duration of their office, while the work covered by Bill #14 was undertaken after the PLs had been discharged from such office.
(4) Even if Cap.32 section 196(2) is engaged, applying In re Buckton [1907] 2 Ch 406 by analogy, the work done by the PLs in the taxation of the 1st Taxation Package – which was adversarial in nature – was for the PLs’ own benefit and not the benefit of the Company, and so they could not claim such remuneration against the estate.
29. As for the PLs, they advance the following arguments:
(1) The appeal is academic as Master Hui has already taxed Bill #14 and there is no appeal against that decision.
(2) The appeal is a collateral attack on (i) the Taxation Costs Order and (ii) Master Hui’s decision to allow Bill #14 in full.
(3) The fees under Bill #14 are covered by the Taxation Costs Order, and there are direct authorities which support recoverability of fees incurred by office holders in complying with discovery orders.
Analysis
30. I will address the issues in the following order.
(1) First, I will address the issue whether this appeal is academic.
(2) Next, given there is no reasoned decision that is binding on me on whether office holders like the PLs can claim remuneration for work done for the purpose of claiming remuneration, the matter has to be approached from first principles.
(3) Then, I will deal with the arguments advanced by the parties.
31. In summary:
(1) I do not consider this appeal to be academic, and that even if it had been, I would have exercised my discretion to entertain it.
(2) Approaching the matter from first principles, the PLs, as fiduciaries subject to the “no profit” rule, must justify their claim for remuneration, which requires them to show (inter alia) that the work they have done is of value to the estate. If the PLs are unable to show that the work they have undertaken to prepare for their application for remuneration and complying with the 1st and 2nd Discovery Orders to that end were of value to the estate, then they are not entitled to be remunerated for that work.
Appeal is not academic
32. I do not consider the appeal to be academic, notwithstanding Master Hui has in the meantime carried out an assessment on Bill #14 and allowed the same in full.
(1) As can be seen from paragraph 24 above, Master dismissed the Company’s summons on the basis that the PLs’ fees incurred for work done to comply with the 1st and 2nd Discovery Orders were part of the costs of taxation of the 1st Taxation Package and covered by the Taxation Costs Order such that the PLs are entitled to claim those fees. Whether the PLs are so entitled is the issue to be determined in this appeal.
(2) Master’s decision to assess the quantum of the PLs’ fees was wholly dependent on the PLs having the legal entitlement in the first place.
(3) Approval for payment to office holders can only be made in accordance with the law: Re Peregrine Investments Holding Ltd (No.1) [1998] 2 HKLRD 670, 693I-J (per Le Pichon J, as she then was). If the PLs have no such entitlement, they are not entitled to be paid at all, the quantum assessment notwithstanding.
33. In any event, even if I am wrong and the appeal has become academic, it is well established that where the question before the court is said to be academic because the real dispute that drove the parties to litigation happens no longer to be in existence at the time of the hearing, the court has jurisdiction to hear and determine the question in issue. Whether or not the court will do so is a matter of discretion.
(1) In deciding whether to exercise its discretion the court will closely examine the relevance or utility of any decision. If the questions raised are of significant public interest and involve pure points of law, unencumbered with the need to make findings of fact, these considerations will lean in favour of the court exercising its discretion to determine the question: Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465, §20 (per Ma CJHC, as he then was); Leung v Secretary for Justice [2006] 4 HKLRD 211, §§28-30 (per Ma CJHC, as he then was).
(2) In this case, it is clear that issue raised – whether office holders can claim remuneration for work done for the purpose of claiming remuneration – is of significant public interest particularly in the field of insolvency practices, and is a question of law. For these reasons, even if the appeal had become academic I would have exercised my discretion to continue to determine it.
Analysing the issue from first principles
34. As explained in paragraphs 46-49 below, there appears to be no reasoned decision that is binding on me on the issue whether office holders can claim remuneration for work done for the purpose of claiming remuneration. I will therefore have to approach the matter from first principles.
35. First, it may be useful to start with differentiating the various types of provisional liquidators and liquidators and identifying the jurisdictional bases for their remuneration.
(1) After the presentation of a winding up petition but before a winding up order is made, the court has power under Cap.32 section 193 to appoint provisional liquidators (“s.193 PL”). Until the amendments to Cap.32 introduced in 2016,[7] the power to grant remuneration to s.193 PL came from the court’s inherent jurisdiction: Peregrine (No.1) 678E-F.[8] The 2016 amendments to Cap.32 introduced section 193(5) which now provides the statutory basis for allowing remuneration for s.193PL.
(2) After a winding up order is made, under Cap.32 section 194(1)(aa)[9] the s.193PL shall continue to act as provisional liquidator until he or another person becomes the liquidator (“s.194PL”).[10]
(a) Although the s.194PL is styled as provisional liquidator, the making of the winding up order marks a fundamental change to the status of the company concerned, and also changes the role of the provisional liquidator; thus s.194PL falls within the definition of “liquidator” in Cap.32 s.2(1): Re MF Global Hong Kong Limited, CACV 251/2012 (unrep., 2 March 2015), §§21, 23-25 (per Barma JA).
(b) Nevertheless, the basis for remuneration for s.194PL remains the same as that for s.193PL, as he is treated as continuing in office: Re Lehman Brothers Securities Asia Ltd (No.2) [2010] 1 HKLRD 58, §§10-25, 31 (per Barma J, as he then was); MF Global (CA) §27.
(c) That remained the position until legislative amendment in 2016, when section 196(1B) was added stipulating
“Subsection (2) applies to a provisional liquidator holding office by virtue of section 194(1)(aa) as it applies to a liquidator (other than the Official Receiver) and to avoid doubt, subsection (2) does not apply to determine the remuneration of the provisional liquidator in respect of the period before the making of the winding-up order.”
Thus, since 13 February 2017 (when the 2016 amendments came into operation) the remuneration of s.194PL is governed by section 196(2).
(3) Cap.32 section 194 contains provisions governing the appointment of liquidators. Once a liquidator is appointed pursuant to section 194, his remuneration is governed by section 196(2), which stipulates as follows:
“Subject to subsection (1A), where a person other than the Official Receiver is appointed liquidator, he shall receive such remuneration by way of percentage or otherwise as is determined –
(a) where there is a committee of inspection, by agreement between the liquidator and the committee of inspection; or
(b) where there is no committee of inspection or the liquidator and the committee of inspection fail to agree, by the court,
and if two or more persons are appointed liquidators, their remuneration shall be distributed among them in such proportions as may be determined by the committee of inspection or the court, as the case may be.”
36. In this case, the PLs were appointed as s.193PLs on 31 May 2011, and continued as s.194PLs after the Company was wound up on 12 September 2013 until they were discharged on 26 May 2016. As such, their remuneration falls to be considered under the court’s inherent jurisdiction.
37. Second, it is important to bear in mind the proper characterization of (and the correct taxonomy applicable to) the subject matter, namely remuneration for provisional liquidators and liquidators, as distinct from costs awarded under RHC Order 62.
(1) RHC Order 62 is concerned with the manner in which the discretion of the court in regard to the costs of and incidental to proceedings in the civil courts is to be exercised. The whole flavour of the provisions in Order 62 is that they relate to litigation costs payable to the solicitors of a party to litigation. Although Order 62, rule 1(1) defines “costs” to include “fees, charges, disbursements, expenses and remuneration”, “remuneration” in this context refers to the solicitor’s remuneration, for a solicitor’s charges represent his remuneration as well as the reimbursement of his expenses: Mirror Group Newspapers plc v Maxwell (No.2) [2001] BCC 488, §§10-11 (per Ferris J).
(2) In the context of court-appointed receiver, it is well established that his remuneration is not of the above character as costs under Order 62. This is because a receiver is not a party to the proceedings, nor does he represent the interests of such a party. His usual function is to get in or protect property which is in jeopardy as a result of a dispute between those who are parties to the litigation. He is an officer of the court who must obey the directions of the court. Although assessment of a receiver’s remuneration is undertaken by a taxing officer, that cannot change the character of a receiver’s remuneration from something which is not “costs” into something which constitutes a form of “costs”: Maxwell (No.2) §§12-13.
(3) That remuneration is distinct from costs in the context of court-appointed receivers has long been recognized by the Hong Kong court: Re CA Pacific Finance Ltd, HCCW 36/1998 (unrep., 20 November 2001), §57 (per Yuen J, as she then was); Re Hong Kong Chiu Chow Po Hing Buddhism Association Ltd (No.2) [2018] 3 HKLRD 270, §25 (per Godfrey Lam J, as Godfrey Lam JA then was).
(4) The same distinction between remuneration and costs applies equally in the context of provisional liquidators and liquidators. See the various provisions in Cap.32 set out in paragraph 35 above which clearly refer to remuneration. This is reinforced by (i) the references to liquidator’s remuneration in WUR rules 146-147 (which are to be read together with Cap.32 section 196(2)) and rule 178 (which refers to “Liquidator’s charges” as remuneration); and (ii) the fact that in WUR rules 169-177 (under the heading “Taxation of Costs”) references to “taxation” and “costs” are directed against persons employed by the liquidator (identified as including solicitor, manager, accountant, auctioneer, broker and others).
(5) Thus, the distinction between remuneration and costs (awarded under Order 62) is clear.
(6) In this regard, the use of correct (or precise) taxonomy is important. It is not uncommon to observe that parties, and in some cases the courts, using “costs” and “remuneration” interchangeably, or describe the assessment of remuneration as “taxation”. This may have contributed to a weakened awareness that the 2 concepts are distinct.
38. Third, in considering remuneration for office holders including provisional liquidators, the “Maxwell principles” apply: Mirror Group Newspapers plc v Maxwell (No.1) [1998] BCC 324, 333-334 (per Ferris J); Peregrine (No.1) 679A-680A, 682D-F (per Le Pichon J). They encompass the following concepts.
39. Firstly, the “Maxwell principles” are based on the recognition that office holders are fiduciaries charged with the duty of protecting, getting in, realizing and ultimately passing on to others assets and properties which belong not to themselves but to creditors or beneficiaries of one kind or another, with the fundamental obligation of a duty to account, both for the way in which they exercise their powers and for the property which they deal with.
40. As fiduciaries they are subject to the “no profit” rule i.e. a trustee must not profit from his trust, and allowance of their remuneration represents an exception to this rule. This exception inevitably involves a conflict between the interests of the fiduciary who is to receive such remuneration and the interests of those to whom the fiduciary duties are owed, who will bear whatever remuneration is allowed.
41. Thus, secondly, it is for the office holders who wish to be remunerated at a particular level to justify their claim. To that end:
(1) Office holders must give full particulars to justify the amount of remuneration claimed. If they seek to be remunerated on the basis of time spent, they must explain the nature of each main task undertaken, the considerations which led them to embark upon that task or to persevere in it, and the time spent must be linked to this explanation so that it can be seen what time was devoted to each task. The amount of detail which needs to be provided will be proportionate to the case.
(2) Office holders must keep proper records of what they have done and why they have done it. Office holders whose records are inadequate are liable to find that doubts are resolved against them because they are unable to fulfil their duty to account for what they have received and to justify their claim to retain part of it for themselves by way of remuneration.
(3) The test is whether a reasonably prudent man, faced with the same circumstances in relation to his own affairs, would lay out or hazard his own money in doing what the office holders have done. Put another way, in all their decision-making the office holders must transparently display the care and anxiety of a prudent businessman acting in his own affairs at his own costs and risk.
See Maxwell (No.1) and Peregrine (No.1) op.cit.
42. Thirdly, where the office holders seek to be remunerated on the basis of time spent:
(1) It is important to bear in mind that time spent represents a measure not of the value of service rendered but the cost of rendering; remuneration should be fixed so as to award value, not so to indemnity against costs: Maxwell (No.1) 336-337.
(2) Assessing remuneration involves consideration of 2 main questions: (i) whether the time charged for was reasonably and properly expended in the course of the liquidation or provisional liquidation; and (ii) if it was, what is the appropriate hourly or other charge. In answering these questions one must look at the nature of the work, and it is for the office holders to justify their claim to remuneration by showing what they have done:
(a) was properly and effectively done;
(b) took the amount of time claimed; and
(c) was of value to the estate (emphasis added):
Maxwell (No.1) 338-339. See also Attorney General of Trinidad and Tobago v CL Financial Ltd (in liq) [2025] UKPC 41, §§108-110.
(3) Further, where the office holders seek to be remunerated on a time basis, they must first satisfy the court that they have the necessary infrastructure and systems in place to enable them to properly discharge their duty to account and to justify their remuneration, before the court would even consider whether their remuneration should be on time basis: Peregrine (No.1) 686A-H. In particular, Le Pichon J has made clear that
“In future, office-holders who seek remuneration on [time] basis will have to satisfy the court that they do have internal office systems that would render such a basis workable. Where such a system is not in place, remuneration on a time basis is plainly out of the question. Even when such a system is in place, the court is likely to consider whether other bases of remuneration would be appropriate …”
Thus, since 1998, it is clear to the profession that they need to have the necessary infrastructure and systems in place before they can put themselves forward to accept appointments for remuneration on time basis. The flipside of that is, the cost of putting in place the infrastructure and systems is a necessary business cost for the office holders in order that they can take on such work.
43. Fourthly, there is no inconsistency between the Procedural Guides and the “Maxwell principles”. As explained in paragraph 14 above, the Procedural Guides were promulgated as part of the court’s procedures, to set out the way in which material should be presented to the court in order to enable the court to approach the assessment of remuneration of office holders in the majority of cases. They are subject to the legal principles applicable, namely the “Maxwell principles”. All they do is to identify in the first instance the materials to be placed before the court to allow its assessment of remuneration to be carried out. But if the court considers that further documents are necessary to carry out the assessment – which the office holder has the duty to maintain (see paragraph 41(2) above) – the office holder should produce the same as part of his duty to account, failing which any doubt will be resolved against him: Boldwin §§14-17; Lehman (No.2) §§46-48.
44. Thus, to sum up:
(1) Because of their special position as fiduciaries and they are seeking to be excepted from the “no profit” rule, office holders who seek remuneration must justify their claim.
(2) As part of that justification exercise where remuneration on time basis is sought, the office holders need to show what they have done is of value to the estate (in addition to showing the work was efficiently and properly done and actually took up the time claimed).
(3) Although under the Procedural Guides the office holders are not required in the first instance to submit contemporaneous underlying documents, they must maintain such documents as their records, and if called upon to produce them they would need to do so, failing which they would likely have failed in their duty to account and would not be able to justify the remuneration claimed.
45. Applying the above principles to the case where an office holder seeks remuneration for what he has done in preparation for or for the purpose of his application to seek remuneration:
(1) The starting point is the office holder is a fiduciary subject to the “no profit” rule and it is for him to justify the remuneration sought.
(2) To that end one asks whether the work for which he now seeks remuneration is of value to the estate. If all the office holder has done is to expend time in putting together information to enable him to claim remuneration, it is difficult to see how such work can be said to be of value to the estate. It is only of value to the office holder since he is under a duty to account and he needs to have these materials in place in order for him to discharge such duty and obtain approval from the court for his remuneration.
(3) This is not to say, however, that the office holder can never claim remuneration for anything he has done in such context. If what he has done, even if relating to the remuneration that he seeks to charge, can be said to be of value to the estate, he may be allowed remuneration for such work.
(4) That is consistent with Barma J’s observations in Lehman (No.2).
(a) In that case and in Re Lehman Brothers Securities Asia Ltd (No.1) [2010] 1 HKLRD, provisional liquidators applied for remuneration and disbursements (for remuneration of their agents including legal and other advisers) and the matter was considered by Barma J in 2 stages, first for dealing with interim payment (Lehman (No.1)) and then for questions of principle as to the basis on which remuneration should be assessed (Lehman (No.2)).
(b) One of the items the provisional liquidators sought remuneration for was called “Billing Tasks”, which was a sum of HK$9.5 million for remuneration of the provisional liquidators and their solicitors, described as “fees of the Provisional Liquidators for critically scrutinizing their own and their agents’ fees and preparing the evidence for these applications”: Lehman (No.1) §§9(a), 13.
(c) The evidence before the court described (inter alia) “the fees and expenses incurred by them in the scrutiny of their own and their agents’ fees”; the court noted that the provisional liquidators’ evidence was “very extensive” “as to the justification for the amounts sought to be charged”, there were narrative as well as “voluminous supporting material in the exhibits”; and the material put forward was of “a high level of quality, has been subject to considerable scrutiny”: §§14, 25, 33.
(d) Barma J declined to grant interim payment for the Billing Tasks, on the basis that the Official Receiver had expressed doubt (which he considered to have some substance) whether such remuneration was properly allowable, when the Billing Tasks appeared to be a form of administrative activity or service tendered to enable the fee earner to provide and charge for the skills which he deploys, in much the same way a solicitor would not be expected to charge his client for time spent compiling, maintaining and reviewing his work and billing records and for preparing a narrative bill for services rendered. However, Barma J also did not rule out the possibility that something should be allowed, if the work done exceeded for good reason that which would normally have been done in preparation of bills for work done: §§40-42. He concluded that he would be assisted by an assessor for input from the perspective of the practice of the profession of insolvency practitioners in terms of work done for billing.
(e) He appointed an assessor in Lehman (No.2) to provide assistance on (inter alia) whether the Billing Tasks went beyond the purely administrative tasks usually performed by provisional liquidators when seeking remuneration for their services and for which they should be remunerated, declined to grant interim payment of the Billing Tasks then, and adjourned it pending the assessor’s report for the same reasons he identified in Lehman (No.1): Lehman (No.2) §§4(b), 7, 54.
(f) I have not been able to locate any subsequent decisions on Lehman in this respect, whether on the Judiciary website or the platforms of private service providers. I note in Re MF Global HK Ltd (No.2) [2012] 3 HKLRD 56, §13, the decision recorded a submission from counsel that subsequent to the hearing in Lehman (No.2) but before the decision in Lehman (No.2) was handed down, the assessor submitted an interim report in which he addressed another question posed to him by Barma J, but there is no indication how the assessor dealt with the Billing Tasks, or whether the Billing Tasks were eventually allowed or not.
(g) Nevertheless, Barma J’s observations are consistent with the analysis above. The Billing Tasks were said to involve work by the provisional liquidators “critically scrutinizing their own and their agents’ fees”. If such critical scrutiny was (as Barma J observed) for good reason exceeded what would normally have been done, and had resulted in reduction of fees charged by the provisional liquidators and their agents, the work could clearly be described as of value to the estate, since the estate is by reason of it laden with less fees.
46. Fourth, none of the authorities cited and relied on by the PLs deviate from or question the principles set out above. The first case relied on by the PLs is Lehman (No.2), which I have already dealt with in paragraph 45(4) above.
47. Next is Hirani v Rendle [2003] EWHC 2538 (Ch).
(1) In that case the bankrupt sought annulment of her bankruptcy before Lawrence Collins J. One of the issues was whether the expenses of the bankruptcy had been paid or secured, when there was a dispute by the bankrupt over the trustee’s costs and expenses, which the court described as very significant having regard to the original indebtedness. The decision recorded that the trustee failed to provide information requested by the bankrupt, who then applied for and obtained orders from Davis J for production by the trustee of various categories of documents including his receipts and payments accounts, proofs of debt, and production of an itemised breakdown of his remuneration. Davis J allowed the application and ordered the trustee to pay the costs of the bankrupt, but reserving the trustee’s costs relating to compliance with the production orders. At the annulment hearing before Lawrence Collins J, he held that the annulment order would be granted conditional upon the bankrupt securing the trustee’s costs and expenses, without prejudice to the bankrupt’s ability to challenge those fees and expenses by way of an assessment before the court. He held that he included in those costs and expenses the trustee’s costs of complying with Davis J’s orders because that was information which was required by the bankrupt and ordered by the court to be given: §§32-35, 54, 57, 60(d), 61, 64. The decision used “costs”, though it is fair to say that the £40,000 attributable to the trustee’s costs of compliance and costs of the application before Davis J was described as the trustee’s time costs, indicating it was remuneration: §60(d).
(2) I do not consider this decision assists the Pls, since there is no analysis of the issue of remuneration for compliance against the applicable principles; the court simply stated that because they were produced pursuant to a court order the trustee was entitled to charge remuneration. Further, Davis J’s production order covered various categories of documents and was not limited to materials relating to the trustee’s remuneration alone; and for those other categories the rationale of the “Maxwell principles” might not be applicable.
48. The third case is AG of Trindad and Tobago. In that case the company was put into liquidation and the Government of Trinidad and Tobago was the largest creditor. The company had numerous subsidiaries over the globe and a considerable amount of fees and expenses were incurred by the liquidators in securing these subsidiaries. The Privy Council observed that there might have been a mismatch in expectation and the Government appeared to have underestimated the amount of work that was involved in the liquidation of a holding company of a group operating internationally. The Government opposed the liquidator’s application for remuneration and in issue was the extent of information required to support a claim for remuneration on time basis: §§2, 11, 23-26, 30.
(1) Essentially, the Board affirmed the “Maxwell principles”, as being widely accepted across common law jurisdictions: §§43-44, 103-115.
(2) Further, the Board affirmed that where remuneration is claimed on time basis, the office holder must establish that the time costs were reasonably incurred, which depended on (inter alia) the work being reasonably undertaken: §§106-111.
(3) The information presented to the court must be sufficient, but at the same time the court should not be burdened with an overwhelming amount of detailed evidence, nor should the estate be burdened with the costs of producing it. It will not usually be necessary to provide all contemporaneous time records, but if there are points raised by the court or reasonably raised by a creditor or a shareholder they should be produced: §§112-114.
(4) In the end, the Board held that the information provided by the liquidators was not sufficient, such that even though it disagreed with the reasons given by the Court of Appeal, the appeal would be dismissed: §151.
(5) In the last section (§§146-150) the Board dealt with “costs of these proceedings”. The PLs relied on the sentence in §148 that “[t]he Board is satisfied that [the liquidators] acted reasonably as regards that evidence and that their costs of preparing it should be treated as an expense of the liquidation” as showing that the Board allowed the liquidators remuneration for preparing the evidence used in the remuneration application. However that is not supported by a proper reading of the judgment. When reading §§146-150 together it is clear that the Board was dealing with legal costs (i.e. costs awarded under Order 62), because the reasoning discusses whether the liquidators could be ordered to bear the Government’s costs on the basis that they were non-parties (as the remuneration application was brought by the company) (§147), as well as costs of the hearing before the judge (§149). Clearly, the Board was considering and deciding only on the question of legal costs incurred in the remuneration application, as opposed to whether the liquidators could seek remuneration for their preparation for and attendance at these hearings.
49. Finally, the PLs relied on Re Roslea Path Ltd (in liq) [2013] 1 NZLR 207.
(1) In that case interim liquidators were appointed to take control of the only asset of the company, a dairy farm, pending sale, on application of 50% shareholders of the company. The other 50% shareholders challenged the remuneration claimed by the liquidators up to 31 August 2008 to be excessive. That was partly successful.
(2) The judgment recorded that there was an oral application by the liquidators at the hearing to approve his remuneration for the period after 31 August 2008, which were primarily incurred in responding to the applicants’ request for further information and in answering their challenge against the liquidators’ remuneration: §§234, 243.
(3) The court did not consider the question whether the liquidators were entitled to remuneration for these items, and simply proceeded to assess (and reduced them in each case): §§234-239. With respect to remuneration claimed by the liquidators for “litigation attendance” (152.7 hours), the court held that because Re Medforce Healthcare Services Ltd (in Liquidation) [2001] 3 NZLR 145, [38] held that the liquidators’ costs associated with remuneration applications are to be treated as costs of the liquidation, the liquidator should be entitled to his costs as well: §240.
(4) However, if one turns to Medforce I, it adopts the “Maxwell principles” in [32]; it goes on to explain, in [32]-[37], the information that would be required from the office holder, and then at [38] it states “such costs as are associated with the application would be treated as costs of the liquidation unless the Court otherwise ordered”. There is nothing to suggest that the court there was dealing with the question of remuneration, as opposed to legal costs.
(5) Thus, there is no reasoned basis in either Medforce I or Roslea Path to support the PL’s proposition.
Returning to facts of the present case
50. I now return to the facts of this case. Here:
(1) The PLs sought approval for their remuneration under the 1st Taxation Package, for which the “Maxwell principles” indisputably apply.
(2) While the PLs have complied with the Procedural Guides in the first instance, the Procedural Guides expressly contemplate that the taxing master may call for the actual documents if he has queries (§3.1). Master Hui held that it was necessary and proportionate for the PLs to produce the underlying contemporaneous documents in support of their remuneration application, hence the 1st and 2nd Discovery Orders. On appeal Harris J agreed, noting in the 2018 Judgment that the PLs as fiduciaries are under a duty to account, and the very high level of fees involved indicated that the work and additional costs involved in giving discovery would not be out of proportion: §§15-16.
(3) Indeed, the PLs accept in their skeleton submissions (§57) that their compliance with the 1st and 2nd Discovery Orders was “a necessary part of [their] duty to account for their remuneration and to provide proper justification for the work they had done”.
(4) There is nothing in the materials before me to show that the PLs’ compliance with the 1st and 2nd Discovery Orders conferred any benefit or value to the estate.
51. Accordingly, there is no basis for the PLs to claim that they should be remunerated out of the estate the work they undertook in complying with the 1st and 2nd Discovery Orders.
52. As Master Hui only reduced the remuneration claimed on the 1st Taxation Package by 5%, he quite rightly considered the PLs to be the successful party and awarded costs (including reserved costs which covered the 1st Discovery Order) to the PLs (i.e. the Taxation Costs Order). This is also what Harris J contemplated in 2018 Judgment §17 that the extent of work that the PLs were put to by the 1st and 2nd Discovery Orders could properly be reflected in an appropriate order for costs to be paid by the Company or Sino Bright. These, however, are costs awarded under Order 62, which is separate and distinct from remuneration. Such legal costs as are awarded by Master Hui have already been paid.
The parties’ arguments
53. As to the Company’s arguments (summarized in paragraph 28 above), while I have concluded that there is no basis, having regard to the law and the materials placed before the Court, to allow the PLs to claim remuneration for compliance with the 1st and 2nd Discovery Orders:
(1) The principle that a legally represented litigant can only claim his legal costs but not costs of his own time spent does not advance the matter, for it does not engage the relevant question, namely remuneration and costs under Order 62 are separate and distinct (see paragraph 37 above), and the Taxation Costs Order was made pursuant to Order 62 and simply did not engage the issue of remuneration.
(2) As to whether it was an abuse of process for the PLs to have submitted 2 bills to be taxed under the Taxation Costs Order:
(a) Properly analyzed, there was only one bill submitted under the Taxation Costs Order, namely the costs bill dated 6 September 2023; Bill #14 was not a bill rendered for the purpose of the Taxation Costs Order.
(b) In any event, had Bill #14 been a bill properly under the Taxation Costs Order, Master Hui considered that there was nothing exceptional in a party providing more than one bill for taxation, and the PLs have already informed the Company when the rendering the costs bill on 6 September 2023 that a further bill would be forthcoming. This is a matter of practice in taxation, which Master Hui has great experience in. I see no reason to find that submitting more than one bill to be taxed under the same costs order would of itself amount to an abuse of process.
(3) As to the argument based on Cap.32 section 196(2), that is not the basis for the PLs’ remuneration in this case. As explained in paragraph 35 above the basis for the PLs’ remuneration in this case is the court’s inherent jurisdiction. As it is not necessary to rule on the Company’s argument on interpretation of section 196(2) I would refrain from so doing, save to note that there would appear to be difficulties with the interpretation the Company puts forward.
(4) Finally, I do not consider the In re Buckton line of authorities provide much assistance, for what is in issue here is remuneration and not costs under Order 62, and the analysis should really be grounded on principles applicable to the former situation.
54. As to the PLs’ arguments (summarized in paragraph 29 above):
(1) On their first point that the appeal is academic, I have already dealt with that in paragraphs 32-33 above.
(2) In relation to the argument that this appeal is a collateral attack on (i) the Taxation Costs Order and (ii) Master Hui’s decision to allow Bill #14 in full:
(a) This cannot be a collateral attack on the Taxation Costs Order since the Taxation Costs Order is only concerned with costs under Order 62 which is distinct from the issue of remuneration.
(b) As explained in paragraph 32 above, Master’s assessment of Bill #14 is dependent on the PLs being entitled to claim such remuneration in the first place, and if there is no entitlement as such, the quantum assessment would not have the effect of conferring entitlement on the PLs either.
(3) As to the contention that there are direct authorities which support recoverability of fees incurred by office holders in complying with discovery orders, that has already been dealt with in paragraphs 46-49 above. Properly understood, none of the authorities cited support the PLs’ contention.
Order
55. In light of the foregoing, the Company’s appeal against Master Hui’s order of 27 May 2025 is allowed, and that the Notice of Appointment for Taxation of the Bills for the Former Provisional Liquidators dated 5 March 2025 is set aside.
56. Costs should follow the event. I will make a costs order nisi that the PLs do pay the Company’s costs of the appeal and costs of and occasioned by the Company’s summons dated 9 May 2025, to be taxed if not agreed.
| (Eva Sit SC) Recorder of the High Court |
Mr Justin Lam, instructed by Johnnie Yam, Jacky Lee & Co., for the Company
Mr Look Chan Ho, instructed by Karas So LLP for the Former Provisional Liquidator
[1] Mr Roderick John Sutton and Mr Fok Hei Yu.
[2] The only version I manage to locate is the 2004 version. The Procedural Guides do not appear to be available on the Judiciary website.
[3] Re Boldwin Construction Co Ltd, HCCW 340/2002 (unrep., 7 November 2006), §§14-15 (per Kwan J).
[4] During Covid-19.
[5] Even if one only considers #29, #36 and #37 of the costs bill (which contain the clearest references to compliance with the 1st and 2nd Discovery Orders), they identify 6 fee earners and one trainee (hourly charges range from HK$2,000 to HK$6,000) collectively devoting approximately 345 hours on tasks of “reviewing, including preparing Notes on Schedules 1 and 2 and considering Clients’ revised Schedule 1 and commenting thereon”, “reviewing and considering documents produced by Clients”, “preparing redacted version of excel file in item 1(a) including reviewing and checking” and burning the documents on DVDs to be produced.
[6] Namely the circumstances falling under (1) London Scottish Benefit Society v Chorley (1884) 13 QBD 872 and (2) Re Nossen’s Patent [1969] 1 WLR 683 respectively.
[7] Companies (Winding-Up and Miscellaneous Provisions) (Amendment) Ordinance 2016, which came into operation on 13 February 2017.
[8] Except that where the conditions in WUR r.28(3) are satisfied (no winding-up order is made; winding-up order has been rescinded; or the proceedings on the petition are stayed), s.193PL’s entitlement to be paid out of the company’s property all costs, charges and expenses properly incurred will be governed by WUR r.28(3): Peregrine (No.1) 677H-J.
[9] Introduced by amendment to Cap.32 in 1997.
[10] In addition, Cap.32 section 194(1) and section 194(1A) also provide for 2 further types of provisional liquidators involving the Official Receiver and persons appointed by the Official Receiver (MF Global (CA) §14), but they are not relevant for present purposes.