JORA SISI OMAR v. JORA HARMIDAR OMAR

HCMP 3129/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3129 OF 2015

(ON AN INTENDED APPEAL FROM HCAP 19/2011)

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D E C I S I O N

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Hon Barma JA (giving the Decision of the Court):

1.  This was an application by the plaintiff, Madam Jora Sisi Omar, seeking leave to appeal against the decision and order of Deputy High Court Judge Kent Yee dated 18 May 2015 dismissing her application for a further review of the taxation of a bill of costs submitted by the defendant, Madam Jora Harmidar Omar, in respect of the costs of three applications in HCAP 19/2011 which Poon J (as he then was) had ordered the applicant to pay to the respondent.

2.  HCAP 19/2011 is a set of probate proceedings instituted by the plaintiff against the defendant in respect of the estate of the late Abdool Kadar Omar.

3.  In the course of those proceedings, the plaintiff issued two summonses (one under RHC Orders 14 and 14A, and the other under Order 18 rule 19), and the defendant issued a third summons (under Order 18 rule 19).  All three applications were heard together by Poon J, who gave a judgment dated 25 March 2013 dismissing the plaintiff’s applications, and allowing the respondent’s application.  By his judgment, Poon J also ordered the applicant to pay the respondent her costs of all three applications, such costs to be paid forthwith.

4.  The bill of costs which was the subject of the Deputy Judge’s decision was prepared by the defendant on 22 May 2013, and was taxed by Master M Wong on 26 May 2014.

5.  Dissatisfied with the outcome of the taxation, the plaintiff applied for a review of the taxing master’s decision pursuant to RHC Order 62 rule 33.  On 24 October 2014, Master M Wong dismissed the application for review.

6.  The plaintiff then applied for a further review of the taxing master’s decision by a judge, pursuant to RHC Order 62 rule 35. This was the application heard by the Deputy Judge, which he dismissed by his Decision of 18 May 2015.

7.  The Deputy Judge came to this view because rather than seeking to complain about the taxing master’s decision in relation to any particular items in the bill of costs, the plaintiff made it clear to him that she was contending that the whole of the costs claimed by the defendant should be disallowed in their entirety, on the basis that the judgment of Poon J, and the costs order against her made in it, was procured by misleading materials and submissions by the defendant.  The plaintiff complained that the Master should have taken these matters into account, and disallowed every item in the defendant’s bill of costs.  The approach taken by the plaintiff was all or nothing.  The plaintiff also contended that the whole of the defendant’s costs of the review should have been disallowed as well, because of allegedly misleading and untruthful documents and submissions relied upon at the review hearing.  The Deputy Judge concluded that this was not an approach that could be countenanced, as it amounted to a wholesale attack on the decision and order of Poon J, which should have been made by way of an appeal against it within the time limited for appealing, which had long since elapsed.  The Deputy Judge held that no appeal having been brought against Poon J’s order, it could not be challenged, and that the plaintiff’s liability to pay costs to the defendant remained in place.  As there were no other valid complaints put forward relating to particular items in the bill of costs, the Master was right to dismiss the application for a review, and the Deputy Judge similarly dismissed the application for a further review.

8.  More than three months later, the plaintiff applied to the Deputy Judge for leave to appeal against his decision.  In his further Decision dated 10 November 2015, the Deputy Judge dismissed the application for leave.  Although the application was made out of time, and the Deputy Judge did not consider that the plaintiff’s reasons for the delay were valid ones, the Deputy Judge nonetheless considered the application on its merits, dismissing it because he was satisfied that the proposed appeal had no reasonable prospects of success.

9.  The plaintiff has now renewed her application for leave to appeal to this court.  The defendant has not made any submissions in relation to the application before us.  However, we must still be satisfied that the appeal is one that has reasonable prospects of success before we would grant leave.

10.  We have given careful consideration to the plaintiff’s application, and have reviewed her extensive notice of appeal (which runs to some 26 pages), her summons for leave to appeal and affirmation in support, and her two further letters to the court containing further submissions.  It is quite clear from those documents that the plaintiff’s stance is as it was before the Deputy Judge – that the bill of costs should have been disallowed by the Master in its entirety, because of the allegedly improper conduct of the defendant which the plaintiff says resulted in the judgment and order of Poon J against her.

11.  This argument has no reasonable prospects of success.  The Deputy Judge was quite right to hold that it was not open to the plaintiff to seek to have the judgment and order of Poon J effectively set aside in this way.  No appeal having been brought against that judgment, it remains in effect, together with the costs order made.  The plaintiff, having adopted this all or nothing approach, raised no specific objections to particular items allowed by the Master in the taxation, and there was therefore no proper basis for the application for review before the Master, or for further review before the Deputy Judge.  The plaintiff’s application for leave to appeal is therefore dismissed.

12.  Moreover, we are satisfied that the proposed appeal is totally without merit, and therefore make an order pursuant to RHC Order 59 rule 2A(8) that no party may request that this determination be reconsidered at an oral hearing.

13.  As the defendant did not make any submissions in respect of this application, and does not appear to have incurred any costs in respect of it, we shall make an order nisi that there is to be no order as to costs.