Case Detail

FCMC 5461/2014

[2023] HKFC 142

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 5461 OF 2014

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BETWEEN
	邱	Petitioner
and
	徐	Respondent

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Before:

Deputy District Judge B Mak in Chambers

Date of Petitioner’s Submission:	24 February 2023 and 14 April 2023
Date of Respondent’s Submission:	24 March 2023
Date of Decision:	21 July 2023

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DECISION

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Introduction

1. By a summons filed on 19 December 2022, the petitioner applied for leave to appeal against my decision dated 21 November 2022 (“my decision”).

Legal principles

2. Section 63A(2) of the District Court Ordinance provides:-

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that—
(a) the appeal has a reasonable prospect of success; or
(b) there is some other reason in the interests of justice why the appeal should be heard.”

3. The test of whether an appeal has a reasonable prospect of success under the new statutory provision is the same test as applied before the amendment to Cap 336, ie whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal as is laid down in Ma Bik Yung v Ko Chuen [2009] 3 HKC 359. A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: see Wing Tat Haberdashery Co Ltd v Elegance Development & Industrial Co Ltd, HCMP 357/2011, 8 July 2011, unreported.

4. Where the appeal is against the exercise of a discretion, the appellant ought to demonstrate that the decision was plainly wrong, or that the trial judge has taken irrelevant matters into consideration or has ignored relevant matters: see SMM v TWM (Child: Relocation) [2010] 4 HKLRD 37 at p 48.

The “Preliminary Issue” Ground

5. In my decision, I ruled on a preliminary issue on the basis that the petitioner had failed to complied with Order 62 rule 35(2) of the Rules of the District Court in that the application for review was made out of time because no application for extension of time was applied for.

6. On review of the court file, this was factually incorrect. As a matter of fact, the solicitors for the petitioner did apply for extension of time by a letter dated 23 June 2022. Master Maurice Lam granted an extension of 28 days on an unless order basis on 30 June 2022. The petitioner’s application was taken out on 28 July 2022, that is to say, on the last day of the time limit and was therefore within time.

7. In the premises, my ruling on the preliminary issue cannot stand.

The Substantive Costs Review Ground

8. Indeed Mr Wing So, counsel for the petitioner, is relying on the “generous ambit” limb in Chan Yin Na v Union Medical Centre Ltd [2014] 4 HKC 158. In doing so, Mr So submitted that “it is an exercise where the judge in review is invited to look at the bill and apply common sense to see whether it is far too generous and there is no need to identify any particular errors”. Mr So further submitted that the court should look at the fees and compare it to the underlying billable task, and see whether this falls outside of the “generous ambit”.

9. The suggested approach of Mr So is no different from asking the judge in review to perform the task of taxation of the items complained of de novo. This approach was expressly rejected by the Court of Appeal in Lam and Lai Solicitors v Ho Chun Yan Albert [2018] 2 HKLRD 127 at para 29.

10. Mr So made no attempt to point out any error of the taxing master. In the review before me, he only repeated what were stated in the original list of objections. With due respect, he has failed to demonstrate any justification in the second review that the court should interfere with the taxing master’s decision.

11. In passing, I should mention that Mr So cited Dollarwell Investments Ltd v Donald Koo Hoi Yan, HCA 12307/1995, 6/10/2005, unreported, in support of his proposition. That case was a taxation review by the taxing master, ie the first review. As such, the said case does not lend support to Mr So at all.

The costs of the first review

12. In the second review before me, the petitioner sought to reverse the costs order of the first review made by the taxing master. I declined to do so because it is not the subject matter of the of the review by the taxing master.

13. Mr So cited Lam Sik Shi v Lam Sik Ying[2020] HKCFI 2978; Lam and Lai (supra) and Chan Yin Na (supra) as examples in aid.

14. Lam Sik Shi (supra) is a review of the taxing master’s ruling on the apportionment of costs liability between the 2 defendants. In Lam and Lai (supra), no argument was heard by the Court of Appeal on the question of costs of the appeal and the costs below. Chan Yin Na (supra) concerns whether counsel’s fees should be allowed as part of the costs of taxation.

15. With due respect, none of the examples cited by Mr So is of assistance to the petitioner.

16. I see no merits in Mr So’s submission.

Conclusion and order

17. By reasons of the aforesaid, I am not satisfied that the petitioner’s intended appeal has reached the threshold of granting leave and therefore the petitioner’s summons must be dismissed.

Costs

18. Costs to follow the event. I make a costs order nisi that the petitioner shall pay the respondent the costs of this application. Such costs to be assessed summarily.

19. In the absence of any application for variation by summons within 14 days from the date of this decision, the costs order nisi shall become absolute.

20. Upon the making of the costs order absolute and for the purpose of summary assessment of costs, I direct that:-

(a) the respondent shall lodge and serve a statement of costs within 14 days from the date of the order absolute; and
(b) the petitioner shall lodge and serve a list of objections within 14 days thereafter.

( Brian Mak )
Deputy District Judge

Mr. Wing So, instructed by H.Y. Leung & Co. LLP, for the Petitioner.

K.T. Chan & Co., for the Receiving Party.

FCMC 5461/2014

[2022] HKFC 249

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 5461 OF 2014

--------------------------------

BETWEEN
	邱	Petitioner
and
	徐	Respondent

--------------------------------

Before: Deputy District Judge B Mak in Chambers

Date of Hearing: 26 October 2022

Date of Decision: 21 November 2022

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DECISION

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Introduction

1. By a summons filed on 28 July 2022, the petitioner applied to review of the taxing master’s decision on the petitioner’s bill of costs (“the bill”) filed on 17 January 2020.

Preliminary issue

2. Before going into the review proper, it is necessary to deal with an issue raised by Mr Stephen Lau, Law Costs Draftsman for K T Chan & Co, the receiving party.

Procedural history

3. The following procedural facts are relevant:-

Date Step taken

17/1/2020 Filing of the bill

14/4/2021 Taxation of the bill

3/5/2021   The petitioner filed a summons applying for review of the taxing master’s decision

6/10/2021     Hearing of the taxation review before the taxing master

25/10/2021   The petitioner’s solicitors wrote to court (“the 1^st letter”)

25/11/2021 The petitioner’s solicitors wrote to court (“the 2^nd letter”)

20/4/2022 Taxing master’s certificate was signed

28/7/2022 The petitioner filed a summons to apply for review before a judge

The receiving party’s submission

4. Mr Lau submitted that the petitioner had failed to apply for the reasons for the taxing master’s decision pursuant to Order 62 rule 35(1) of the Rules of the District Court. Without the reasons for the taxing master’s decision, this court would not be able to ascertain whether the taxing master has erred in principle, took into account irrelevant matters or failed to take into account relevant matters.

The petitioner’s submission

5. Mr Wing So, counsel for the petitioner, replied that the petitioner did by the 1^st letter ask the taxing master for the reasons of her decision for the purpose of a further review. The taxing master directed that transcripts in respect of the hearing for the review of taxation on 6 October 2021 should be applied for. By the 2^nd letter, the petitioner did apply for the transcripts of the hearing.

Discussion on preliminary issue

6. Order 62 rule 34(4) of the Rules of the District Court (“RDC”) provides:-

“(4) A taxing master who has reviewed a decision in respect of any item shall issue his certificate accordingly and, if requested to do so by any party to the proceedings before him, shall state in his certificate or otherwise in writing by reference to the objections to that decision the reasons for his decision on review, and any special facts or circumstances relevant to it. A request under this paragraph must be made within 14 days after the review or such shorter period as may be fixed by the taxing master.”

7. Order 62 rule 35 of RDC provides:-

“(1) Any party who is dissatisfied with the decision of a taxing master to allow or to disallow any item in whole or in part on review under rule 34, or with the amount allowed in respect of any item by a taxing master on any such review, may apply to a judge for an order to review the taxation as to that item or part of an item if, but only if, one of the parties to the proceedings before the taxing master requested that officer in accordance with rule 34(4) to state the reasons for his decision in respect of that item or part on the review.
(2) An application under this rule for review of a taxing master’s decision in respect of any item may be made at any time within 14 days after the taxing master’s certificate in respect of that item is signed, or such longer time as the taxing master at the time when he signs the certificate, or the Court at any time, may allow.
(3) An application under this rule shall be made by summons and shall, except where the judge thinks fit to adjourn into court, be heard in chambers.”

8. Order 62 rule 35(1) requires the party seeking a review before a judge to apply to the taxing master the reasons for decision on review pursuant to rule 34(4). Rule 34(4) requires that such request to be made within 14 days after the review.

9. By the 1^st letter, the petitioner, aware of the fact that the request was made outside the 14-day period, asked for an extension of time.

10. The petitioner was directed by the taxing master to apply for the transcripts of the review hearing on 6 October 2021. Though not expressly stated, I take it that an extension of time was granted.

11. However, the matter does not end here.

12. Under rule 35(2), the petitioner is required to make the application for review by a judge within 14 days after the taxing master’s certificate was signed. Rule 35(3) provides that the application shall be made by summons.

13. As noted in paragraph 3 above, the taxing master’s certificate was singed on 22 April 2022 whereas the petitioner’s summons was taken out on 28 July 2022, some 3 months later.

14. Rule 35(2) provides that the time limit thereunder may be extended by the taxing master or the court. Nevertheless, the petitioner made no such application either by the summons or at the hearing of the summons.

15. This is the 2^nd time the petitioner has failed to observe the time limits stipulated by the rules. Extension is not to be granted as a matter of course. The petitioner should not be condoned for her habitual non-observance of the time limits specified by the rules. Therefore, even if the petitioner had applied for an extension to time, I am not inclined to allow the application.

16. My ruling on the preliminary issue is sufficient to dispose of the petitioner’s summons.

17. For the sake of completeness, however, I would briefly deal with the merits of the petitioner’s review.

Legal principles on taxation review by a judge

18. The Court of Appeal in Lam and Lai Solicitors v Ho Chun Yan Albert [2018] 2 HKLRD 127 in approving the approach in Chan Yin Na v Union Medical Centre Ltd [2011] 4 HKC 158 held that:-

“On a review of a taxing master’s certificate under O62 r35, a judge did not conduct a taxation de novo and should not interfere with the Master’s decision, which was essentially a matter of discretion, save in limited circumstances: if the decision was shown to have been arrived at under a mistake of law, or in disregard of principles, or under a palpable misapprehension as to the facts, or plainly in reliance on irrelevant matters, or to be such as to fall outside the generous ambit within which reasonable disagreement was possible.”

The petitioner’s grounds of review

19. In respect of the items which the petitioner is seeking to review, Mr So repeated what were stated in the original list of objections. Mr So submitted that the review falls under the “such as to fall outside the generous ambit within which reasonable disagreement is possible” limb.

20. In respect of the costs of the review before the taxing master, Mr So submitted that as the petitioner was successful in the crux of the issues raised by the respondent, ie the right of the petitioner to review the taxation, and coupled with the fact that a significant amount of costs was taxed off eventually, costs should have been to the petitioner.

The receiving party’s opposition

21. Mr Lau submitted that by regurgitation of the previous objections, the petitioner is asking the court to reconsider the taxed items. This is not the proper purpose of a review under Order 62 rule 35. The petitioner has to prove that the taxing master had erred in principle, had taken into account irrelevant matters or had failed to take into account relevant matter when exercising her discretion.

22. Regarding the costs of the review before taking master, Mr Lau submitted that it fell outside review regime under Order 62 rule 35. The petitioner should challenge the costs order by way of an appeal under Order 58 of RDC.

Discussion

23. With respect, what Mr So is seeking to do is to ask this court to tax the items complained of afresh. The petitioner is simply disagreeing with the amounts allowed by the taxing master short of demonstrating that the taxed amounts have “fallen outside the generous ambit within which reasonable disagreement is possible”. Disagreement alone does not entitle the petitioner to have a second bite of the cherry in the guise of taxation review.

24. The costs order of the taxation review made by the taxing master does not fall within the ambit of the taxation review for the simple reason that it is not the subject matter of the review by the taxing master. Therefore, taxation review regime is not available to the dissatisfied petitioner who should proceed under Order 58 rule 1 of the RDC instead.

Conclusion and order

25. By reasons of the aforesaid, I see no merits in the petitioner’s summons and would dismiss it accordingly.

Costs

26. Costs to follow the event. I make a costs order nisi that the petitioner shall pay the receiving party the costs of this review, to be taxed if not agreed.

27. In the absence of any application for variation by summons within 14 days from the date of this decision, the costs order nisi shall become absolute.

( Brian Mak )
Deputy District Judge

Mr. Wing So, instructed by H.Y. Leung & Co. LLP, for the Petitioner.

Mr. Stephen Lau, Law Costs Draftsman, representing K.T. Chan & Co., the receiving party.

邱 v. 徐

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Files (2)

Date	Step taken

17/1/2020	Filing of the bill

14/4/2021	Taxation of the bill

3/5/2021	The petitioner filed a summons applying for review of the taxing master’s decision

6/10/2021	Hearing of the taxation review before the taxing master

25/10/2021	The petitioner’s solicitors wrote to court (“the 1^st letter”)

25/11/2021	The petitioner’s solicitors wrote to court (“the 2^nd letter”)

20/4/2022	Taxing master’s certificate was signed

28/7/2022	The petitioner filed a summons to apply for review before a judge