吳錫偉 v. 嘉景臺業主立案法團 AND ANOTHER
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LDBM 35/2014
IN THE LANDS TRIBUNAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
BUILDING MANAGEMENT APPLICATION NO. 35 OF 2014
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| BETWEEN | ||
| 吳錫偉 | Applicant | |
| and | ||
| 嘉景臺業主立案法團 | 1st Respondent | |
| 王秋江 | 2nd Respondent |
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| Before: Deputy District Judge J. Chowin Chambers (Open to public) |
| Date of Hearing: 17 August 2016 |
| Date of Decision: 13 October 2016 |
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DECISION
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Introduction
1. This is a taxation review. The applicant, the paying party, applies to review the decision of Master David Cheung dated 30 March 2016 pursuant to Order 62 rule 35 of the Rules of District Court, Cap 336H (“RDC”).
Background
2. The applicant is the owner of a residential flat in Corona Tower (嘉景臺); the 1st respondent is the incorporated owners of Corona Tower and the 2nd respondent is the chairperson of the incorporated owners.
3. The action was tried before Deputy District Judge A Kot and her judgment was handed down on 7 May 2015. The learned deputy judge ordered the applicant to pay the costs of the 2nd respondent, excluding certificate for counsel, to be taxed if not agreed.
4. On 6 November 2015, the 2nd respondent’s bill of costs was initially taxed by the chief judicial clerk of the District Court. The applicant applied for an oral hearing which was heard before Master David Cheung on 12 January 2016. The applicant further applied to review the learned master’s decision. On 30 March 2016, the learned master gave his decision for review on the same day.
5. The certificate of assessment was sealed on 15 July 2016. The applicant applied to review the decision of the learned master on 22 July 2016, which is one day late from the prescribed time[1].
Late application
6. The extent of tardiness on the part of the applicant is not significant, no real prejudice has been caused to the 2nd respondent. The application for taxation review out of time pursuant to Order 62 rule 35 of the RDC is granted.
The legal principles of the review
7. In an application for review taken out pursuant to Order 62 rule 35(4) of RDC, the judge may exercise all such powers and discretions as are vested in the taxing master in relation to the subject matter of the application.
The issues
8. The areas of the applicant’s review are as follows:
(i) the hourly rate of CW, the handling solicitor of the 2nd respondent;
(ii) items A3, A14, A15, A18, A19, A24 and A25 of the 2nd respondent’s bill of costs, collectively referred to the preparatory works;
(iii) items A21(c), A22(b), A23(a) and A23(e) of the 2nd respondent’s bill of costs, collectively referred to as the costs of attendance in the Lands Tribunal;
(iv) items A26 – A30 of the 2nd respondent’s bill of costs, collectively referred to as the correspondence;
(v) items A31 and 33 of the 2nd respondent’s bill of costs, collectively referred to as the letters after judgment;
(vi) section C of the 2nd respondent’s bill of costs, collectively referred to as the taxation costs; and
(vii) the costs of the hearing on 30 March 2016.
Hourly rate
9. The learned master ruled $2,600 as the appropriate hourly rate for CW, the handling solicitor of the 2nd respondent. The applicant submitted, a solicitor with 6 to 7 years post qualification experience can well handle this action. It is not necessary for the 2nd respondent to retain a senior solicitor who has more than 10 years of post qualification experience. The hourly rate of $2,600 is not justified.
10. I agree with the learned master. The hourly rate at $2,600 is a reasonable assessment. Disallowing certificate for counsel has a bearing on costs of the trial already. It is reasonable for the 2nd respondent to retain a solicitor for more than 10 years of post qualification experience to handle the entire action. It would be unfair for the court to discount further the hourly rate of CW.
11. The hourly rate of CW at $2,600 shall be maintained.
Preparatory Works (Items A3, A14, A15, A18, A19, A24 and A25)
12. The learned master ruled 50% of the costs of the preparatory works done as itemized above should be apportioned as the costs of the 2nd respondent. The applicant conceded A19, witness statement of the respondent should be part of the 2nd respondent’s costs.
13. The applicant submitted works which are were unrelated to the 2nd respondent should be disallowed, namely, (i) the costs of the list of objections and other works prior to the filing of the witness statement, ie, costs of items A3, A14 and A18; and (ii) attendance on the 2nd respondent, ie. items A24 and A25.
14. Item A3 is the list of objections for both the 1st and 2nd respondents. Both items A14 and A18 are witness statements of Chan Sum Yue （陳心雨）of the 1st respondent. Chan Sam Yue deposed in both her witness statements that she will testify for both respondents. It is therefore unreasonable to disallow the costs of these items. Items A24 and A25 are the attendance notes of the solicitors preparing both the lists of objections and witness statements. For the same reason, the 2nd respondent shall be entitled to such costs.
15. The ruling of the learned master under this head shall be maintained.
Costs of attendance in the Lands Tribunal (Items A21(c), A22(b), A23(a) and A23(e))
16. The learned master ruled the 2nd respondent is entitled to costs for the hearing of the applicant’s claim in the Lands Tribunal in terms of costs of a solicitor with 10 years post qualification experience. The applicant complained the fees charged by the solicitor are higher than a counsel. He recalled no instructing solicitors appeared at the hearing but a legal clerk. As the certificate for counsel has been disallowed by the learned judge, the applicant believed the aggregate costs charged by a solicitor handling should not be any higher than that charged by the counsel.
17. The learned judge would not be provided with counsel brief at time when the costs order is made. She would not have known the exact fee and any disparity on costs between attending trial by instructing a counsel with a legal clerk vis-à-vis by a senior solicitor. The applicant’s argument has no legal basis.
18. The learned master’s ruling under this head shall be maintained.
The correspondence (Items A26 – A 30)
19. The learned master allowed costs on the correspondence, including telephone conferences and emails. The applicant complained the amount of work is excessive. As the evidence on the part of the 2nd respondent only arose in his witness statements, any work done prior should not be allowed. He further complained the works relating to correspondence were not particularized, he has no idea of the necessity of such work.
20. The participation of the 1st and 2nd respondents in this action is inter-related. It would be impracticable and implausible for the solicitors to server correspondence that only relates to one respondent. I accept the works under “correspondence” are unable to particularized, or the time and effort in doing so would outweigh the work done itself.
21. The learned master’s ruling under this head shall be maintained.
Letters after judgment (Items A31 & A33)
22. The learned master ruled the letters were not written for settlement purpose. The applicant disagreed and submitted those letters are attempts made by the 2nd respondent for settlement on costs. Such costs are allowable only if the matter was eventually settled as “costs incurred in connection with settlement” (See paragraph 62/App/21(6) of the Hong Kong Civil Procedure). As there is no settlement or compromise on costs, the 2nd respondent shall not be entitled to costs of the letters after judgment.
23. Item A31 was a letter written by the solicitors of the 2nd respondent to the applicant dated 21 May 2016. In that the 2nd respondent clarified the taxation procedure and demanded the applicant for payment of costs. Item A33 was a letter written by the applicant to the 2nd respondent stating the proportion of costs of hearing of the 2nd respondent. I am unable to see there were inkling of settlement contained in both items.
24. The learned master’s ruling under this head shall be maintained.
Taxation costs (Section C of the 2nd respondent’s bill of costs)
25. This is a general complaint by the applicant that the 2nd respondent has submitted an “inflated bill” in sum of $73,960.50, which was taxed down by the chief judicial clerk. The applicant further complained the 2nd respondent had failed to try its best endeavour to settle his costs after the judgment. The 2nd respondent is not entitled to the costs of taxation as a means of “penalty”.
26. It is rare case, when taxation is contested, that the bill of costs will be taxed as drawn. The applicant’s complaint of “inflated bill” has no basis. Neither could I criticize the conduct of the 2nd respondent for failing to settle costs after the judgment. The applicant’s argument cannot stand.
The costs of the review hearing before the learned master on 30 March 2016
27. The learned master allowed costs for attending the hearing on 30 March 2016 by the handling solicitors of the 2nd respondent for 4 hours 45 minutes, including waiting time of 1 hour 40 minutes. The applicant complained the costs of the waiting time shall be deducted.
28. I accept his argument because the general rule on taxation contained in paragraph 62/App/21(4) of the Hong Kong Civil Procedure states unequivocally waiting time in court hearing should not be allowed.
Conclusion
29. This taxation review is allowed to the extent that costs of waiting time of the attendance of the handling solicitor for the 2nd respondent, ie, 1 hour 40 minutes on 30 March 2016 shall be taxed off.
30. Certificate for counsel for this taxation review is disallowed. Ms Chan, counsel instructed by the 2nd respondent did not assist sufficiently in making submission with assistance of legal authorities. Her written submission only displayed practice directions, relevant rules contained in the RDC and chronology of events. The same kind of work can be done by the handling solicitor of the 2nd respondent.
31. Both the applicant and the 2nd respondent agreed the hearing time of this taxation review is 3 hours and 15 minutes. In light of the outcome of this review, the applicant only succeeded in one out of eight items, it is fair and just for the applicant to pay this proportion of costs to the 2nd respondent, being 87.5% (7/8). I opt for the rate of a solicitor with 10 years post qualification experience at an hourly rate of $2,600. I so order the costs of this taxation review, to be paid by the applicant to the 2nd respondent, in sum of [($2,600 x 3.25 hours) x 87.5%] $7,393.75.
| ( J. Chow ) | |
| Deputy District Judge |
Mr Ng Shek Wai, the applicant, appearing in person (paying party)
Ms Candy Chan, instructed by S K Lam, Alfred Chan & Co., for the respondent (receiving party)
[1] Order 62 rule 35(2) stated “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.”