OLDHAM, LI & NIE, SOLICITORS v. CHAN BOON NING JOHN

DCCJ 5075/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5075 OF 2004

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Decision

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1.  This is an application by the Defendant to transfer this action to the Court of First Instance.

2.  On 24^th September, 2004, the Plaintiff instituted the present action against the Defendant for the sum of $352,548.33 for work done, services rendered and money paid by the Plaintiff as the Defendant’s solicitors for and on behalf of the Defendant, and at her request, the particulars of which are contained in the Plaintiff’s bills of costs delivered to the Defendant, from October 2003 to April 2004.

3.  The Defendant contended that the District Court has no jurisdiction to assess the taxation of costs pursuant to section 67 of the Legal Practitioner Ordinance, Cap. 159 (“the Ordinance”), citing the case of Kao, Lee & Yip (a firm) v. High View Properties Ltd. & Anor [1998] HKLR 555.  Section 67(1) and (2) reads:

“	(1)	On the application, made within 1 month of the delivery of a solicitor’s bill or a foreign lawyer’s bill, of the party chargeable therewith the Court shall, without requiring any sum to be paid into court, under that the bill shall be taxed, and that no action shall be commenced thereon until the taxation is completed.
	(2)	If no such application is made within the period mentioned in subsection (1), then, on the application of the solicitor or the foreign lawyer, or of the party chargeable with the bill, the Court may, upon such terms, if any, as it thinks fit (not being terms as to the costs of the taxation), order-
		(a)	that the bill shall be taxed;
		(b)	that, until the taxation is complete, no action shall be commenced on the bill, and any action already commenced be stayed:
		Provided that –
		(i)	if 12 months have expired from the delivery of the bill, … no order shall be made on the application of the party chargeable with the bill except in special circumstances………”
		(Underlines provided)

4.  The Court referred to in section 67 is the Court of the First Instance.  In the case of Kao, Lee & Yip, the respondents applied to the District Court under section 67 of the Legal Practitioners Ordinance for orders for the taxation of bills of costs for non-contention business delivered to them by the appellants, a firm of solicitors.  The District Court judge granted the respondents the relief they sought.  On appeal, the Court of Appeal held that, in view of the definition of the word “court” in s.2, the District Court had no jurisdiction to entertain application under section 67 and to make orders under that section; the applications by the respondents were misconceived.    But the decision in that case has no application in the present proceedings.  The provision under section 67(1) of the Ordinance is only invoked upon the application of the party chargeable with the bill within the stipulated period referred to under that subsection, whereas the provision of subsection (2) is only invoked upon the application of the party named in that subsection.  There has been no application under section 67 by the Defendant.  Therefore the provisions of section 67 have not been invoked; hence, there is no issue relating to any taxation of the bills in question.

5.  Section 32(1) of the District Ordinance provides that the District Court has jurisdiction to hear any determine any action founded on contract, quasi-contract or tort where the amount of the Plaintiff’s claim does not exceed $1,000,000.  The Plaintiff’s claim is a claim for services rendered to its client under a service contract.  Its claim falls squarely within the ambit of section 32(1), and is therefore within the jurisdiction of the District Court.  Hence, this case should not be transferred to the High Court.  I therefore dismiss the Defendant’s application.

Costs

6.  I make an order nisi, to be made absolute in 14 days’ time, that the Defendant do pay costs of this application to the Plaintiff, to be taxed, if not agreed.