邱 v. 徐

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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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.