LUI PO KEUNG v. TAM KWOK HUNG

IN THE SUPREME COURT 0F HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. This matter is an appeal against the decision made by Master Hansen upon a review of taxation. It concerns a claim which was brought in a running down case in the Supreme Court which was settled in October of 1984 upon the basis that "the Defendant do pay the Plaintiff the sum of $50,000 plus costs to be taxed if not agreed". The matter concerns the meaning to be given to the words "costs to be taxed". It was argued in front of Master Hansen and again in front of me that, in the absence of any order from the High Court, the section operates so as to disentitle the Plaintiff from costs on the High Court scale. S.43(2) of the District Court Ordinance reads as follows:

"Where any proceedings in which the Court has jurisdiction are brought in the High Court, costs shall be recoverable on such scale and on such amount as would have been recoverable if the proceedings had been brought in the Court, unless the proceedings were so brought by leave of the High Court or unless the High Court otherwise orders".

Mr. Yan, who appears for the Appellant Plaintiff, has argued three grounds. The first was that an order by consent after a settlement was in some way different from an order made after trial and that the decision of the Court of Appeal in Lee Wah Man Weaving Factory v. Hau Lap Co. Ltd, Civil Appeal No. 48 of 1984, which dealt with an order made after trial and upon which the Respondent/Defendant relied, had no application. L am unable to see how in this regard an agreed order is any different from an order made after trial except perhaps that an agreed order cannot be attacked upon the ground that the Judge has not made use of the proper exercise of his discretion. The words in an agreed order will be exactly the same as the words normally used by a Judge at the conclusion of a trial. The words are clear and simple ones - "plus costs to be taxed". I am satisfied that in both cases these words mean what they say - costs to be taxed upon the ordinary principles of taxation.

2. That disposes of the first point argued by Mr. Yan and I turn to the second point. Mr. Yan suggested, that Section 43(2) when it said "any proceedings where the Court has jurisdiction" meant that one had to look at Section 33, Sub-section 1 to ascertain whether the matter, as pleaded, was one in which the Supreme Court had jurisdiction and the District Court, therefore, did not. He submitted that if this was found to be so, then Section 43(2) did not have any application to a proceeding in which an amount in excess of $60,000 was claimed that being the limit of the jurisdiction of the District Court. This argument runs entirely against the reasoning in the Court of Appeal decision to which I referred above and upon which Plaster Hansen relied. That decision relied upon Solomon v. Mulliner (1901) 1 Q.B. 76 which held that what determined the matter was whether the amount actually recovered was an amount as to which the District Court had jurisdiction, and not whether the amount which had been originally claimed was an amount within the jurisdiction of the District Court. Solomon & Mulliner dealt directly with the point saying "at what time is it to be ascertained whether the action is, as regards amount, properly within the jurisdiction of the County Court not in my opinion at the time when the Plaintiff is stating what amount he thinks fit to claim on the writ or statement of claim but at the time when the amount recoverable is adjudicated on by the proper tribunal or otherwise ascertained by the result". I am bound by the decision of the Court of Appeal. I have no doubt at all that has application to the circumstances of the present case, and I therefore reject the second ground of argument put forth by Mr. Yan.

3. Mr. Yan's third ground of argument really was that as the amount that was recovered was less than the amount which might have been recovered had there not been a settlement this Court somehow had jurisdiction to go beyond the words of the settlement. This cannot be so. I am satisfied that I must be bound by the words to which the parties agreed and which were that there be judgment for "the sum of $50,000 plus costs to be taxed if not agreed". I cannot look beyond this formula of words which, as I have already indicated, means cost to be taxed upon the ordinary principles of taxation which, in the circumstances, means taxation upon the District Court scale.

4. In all of the circumstances then the appeal be dismissed. I order the Plaintiff Appellant to pay the Defendant Respondent's cost of the appeal to be taxed.