RE GREATER BEIJING REGION EXPRESSWAYS LTD

HCCW 399/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP PROCEEDINGS NO. 399 OF 1999

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J U D G M E N T

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1. This is an application by Mr David Yuk Wah Ho ("Mr Ho") by summons dated 27 October 2003 seeking a review of Master Woolley's decision dated 21 August 2003 on a review of taxation in respect of a bill of costs in respect of the costs of Always Win Development Ltd ("Always Win"). The bill related to Always Win's costs in respect of a number of applications (which I shall describe briefly below) arising out of winding up proceedings against Greater Beijing Region Expressways Limited ("GBRE"), a company involved in toll road projects on the Mainland, of which Mr Ho was a director and an indirect shareholder.

2. By his decision, Master Woolley rejected (save in respect of three minor items) the objections which Mr Ho had raised in respect of this bill. Mr Ho now seeks a review of that decision pursuant to RHC Order 62 rule 35, which provides that:-

"Any party who is dissatisfied with the decision of a taxing master to allow or to disallow any item in whole or in part on review under rule 33 or 34, or with the amount allowed in respect of any item by a taxing master on any such review, may apply to a judge for an order to review the taxation as to that item or part of an item ..."

3. The background to the matter (which I have taken substantially from the judgment of Le Pichon J dated 8 February 2000) may be summarised as follows. On 7 May 1999, a petition seeking the winding up of GBRE on the just and equitable ground was presented by one of its shareholders, Miracle Chance Limited, which complained of the dilution by Mr Ho of its shareholding in GBRE, and also of other transactions which were said to have resulted in Mr Ho and entities connected by him benefitting at the expense of GBRE. Following the presentation of the petition, a number of other shareholders of GBRE indicated that they wished to appear on the hearing of the petition, although they did not (at that stage, at least) indicate whether they supported or opposed it. These included Always Win, which had between November 1997 and February 1998 acquired an 18.97% stake in GBRE for a consideration of over US$80 million. They also included a group of five other shareholders (Asia Pacific Growth Fund II L.P., BeN Offshore Investments Ltd, Fantasia Venture Limited, Onfem Holdings Limited and Quantum Emerging Growth Partners CV ("the Five Shareholders"). On 5 November 1999, while the petition proceedings were still pending, Always Win, the Five Shareholders and another shareholder in GBRE called China Securities (International) Limited ("China Securities"), who together held some 62.2% of the issued share capital of GBRE, passed a resolution for the removal of Mr Ho and his associates as directors of GBRE with effect from 20 November 1999. Mr Ho was apparently notified of this resolution as a matter of courtesy. His response, the same day, was to cause GBRE to allot to a company controlled by him sufficient shares to enable him to defeat this resolution. This allotment of course also had the effect of diluting the shareholdings of Always Win, the Five Shareholders and China Securities.

4. On discovering this allotment, the Five Shareholders applied by Summons dated 23 November 1999 for injunctive relief against GBRE, Mr Ho and other directors associated with him, alternatively for the appointment of a provisional liquidator to GBRE, and for discovery from GBRE, Mr Ho and the other directors associated with him. On being served with the Summons, Always Win decided to appear at the hearing of the Summons (which had been fixed to be heard the next day, 24 November 1999) and support the application. It did so by its own solicitors, Messrs Woo Kwan Lee and Lo, and counsel - Mr Denis Chang, SC and Ms Eliza Yiu, while the Five Shareholders were represented by Messrs Linklaters and Mr Jonathan Harris of counsel (China Securities did not take part in the application). In the event, the applications for injunctive relief and appointment of provisional liquidators were not proceeded with, apparently because it was thought that these might result in an event of default under the terms of a bond issue which had been made by a subsidiary of GBRE, which could result in substantial losses to GBRE, and the Five Shareholders chose not to offer a cross-undertaking in damages. However, revised orders seeking discovery were sought, and Le Pichon J made orders requiring GBRE and its directors to make disclosure and discovery.

5. On 2 December 1999, GBRE and the directors issued summonses seeking the discharge of the disclosure and discovery orders made on 24 November 1999. An interim order was made by Le Pichon J on 3 December 1999, when directions were given for the filing of evidence and fixing dates for the substantive hearing of the applications for discharge. This was eventually heard on 13, 14 and 19 January 2000. As the initial application had been by the Five Shareholders, the order of 24 November 1999 did not require disclosure or discovery to be made to Always Win. Accordingly, on 10 January 2000, Always Win issued its own summons seeking an identical order for disclosure to that which had been made on 24 November 1999 in favour of the Five Shareholders. Always Win's summons was opposed by the Company and its directors, and was heard at the same time as their applications to discharge the 24 November 1999 order. In the event, Le Pichon J dismissed the applications for discharge of the 24 November 1999 order and made an order in favour of Always Win on its summons. Le Pichon J did not deal in her judgment with the costs of the application before her, or of the costs of various earlier hearings (including that on 24 November 1999) which had been reserved. These costs were eventually dealt with by an order of Deputy Judge To dated 21 March 2002, in which it was ordered that Mr Ho should pay the costs of Always Win and the Five Shareholders on a party and party basis. Always Win sought and obtained from Deputy Judge To a certificate for two counsel.

6. Following the making of the costs order, it appears that instructions were given by Always Win for a bill of costs to be drawn up by a law costs draftsman. A draft bill of costs was submitted to Mr Ho's solicitors on 6 September 2002, and the formal bill was issued on 6 November 2002, after which it was taxed and reviewed by Master Woolley.

7. Before me, Mr Ho raises eight objections to Always Win's bill of costs. Seven of these relate to counsels' fees which had been allowed by Master Woolley. The eighth relates to Master Woolley's rejection of a submission that had been made to him that the overall bill as taxed should be the subject of a further global reduction to take account of what was said to be undue delay on the part of Always Win in having its costs taxed.

8. Pursuant to Order 62 rule 35(4):-

"Unless the judge otherwise directs, no further evidence shall be received on the hearing of an application under this rule, and no ground of objection shall be raised which was not raised on the review by the taxing master but, save as aforesaid, on the hearing of any such application the judge may exercise all such powers and discretion as are vested in the taxing master in relation to the subject-matter of the application."

It is therefore open to me to exercise the powers and discretion which vested in Master Woolley afresh, without being fettered by the manner in which he dealt with the matter.

9. I turn now to consider each of the objections raised by Mr Ho, and will deal as necessary with the applicable principles when dealing with each objection.

Objection 1

10. The first objection taken was to the brief fee paid to Mr Chang, SC for the hearing on 24 November 1999. Mr Chang's brief fee was HK$250,000.00. This was reduced by Master Woolley on taxation to HK$200,000.00, an amount which was confirmed upon review. No objection was taken to the brief fee payable to junior counsel, Ms Eliza Yiu, of HK$60,000.00.

11. Mr Thomas, appearing for Mr Ho, submitted that the amount allowed of HK$200,000.00 was grossly excessive, and was therefore neither necessary nor proper for the attainment of justice. As I understood it, this submission was based on the following grounds:-

(1) The total fee allowed in respect of both of Always Win's counsel was HK$260,000.00, which was far in excess of the brief fee of HK$75,000.00 charged by Mr Harris who appeared for the Five Shareholders, and is therefore excessive when the "hypothetical counsel" test (to which I refer below) is applied.

(2) The hearing on 24 November 1999 was a hearing of the Five Shareholders' summons, and Always Win merely supported it. It could therefore have been represented by Mr Harris as well, so that there would have been no need to instruct separate counsel.

(3) Alternatively, either two counsel should not have been instructed for such a supporting role, or counsel of the seniority of Mr Chang should not have been instructed.

(4) In the event, the Five Shareholders did not pursue the injunctive relief and appointment of provisional liquidators, but only the discovery application, so that most of the relief sought by their summons was dropped. This meant that the services of counsel were unnecessary, or at least extremely expensive.

12. It will be noted that in relation to this, and other objections, Mr Thomas' submissions proceeded on the basis that the appropriate test to apply to counsel's fees was that laid down in Order 62 rule 28(2) as being applicable to party and party taxations - namely, whether the costs incurred were "necessary or proper" for the attainment of justice.

13. Mr Thomas submitted that as the taxation was on the party and party basis, only such costs as were necessary or proper should be allowed (see Order 62 rule 28(2)). He reminded me that this is the strictest of the normal bases of taxation, and that taxed costs are not the same as costs reasonably incurred. So far as counsel's fees are concerned, Mr Thomas drew my attention to the provisions of paragraph 2(5) of Part II of the First Schedule to Order 62, which states:-

"Every fee paid to counsel shall be allowed in full on taxation, unless the taxing master is satisfied that the same is excessive and unreasonable, in which event the taxing master shall exercise his discretion having regard to all the relevant circumstances and in particular to the matters set out in paragraph 1(2)."

He also drew my attention to Paragraph 1(2) of Part II of the First Schedule to Order 62 which lists seven particular matters to which a taxing master should have regard to when exercising his discretion under Order 62 rule 32(2). According to the introductory part of that paragraph, it is applicable (inter alia) to taxations under rule 29 as between solicitor and own client, and under rule 31(2) in respect of trustee's or personal representative's costs to be paid out of a fund held by him in that capacity.

14. Mr Thomas submitted that notwithstanding the terms of paragraph 2(5), counsel's fees should be taxed in substantially the same way as any other item in a party and party taxation. He referred to the approach adopted by the English courts in relation to the taxation of counsel's fees, as illustrated by cases such as Simpsons Motor Sales (London) Ltd v Hendon Corporation (No. 2) [1965] 1 WLR 112, where it was stated that the measure of counsel's fees is to be determined by estimating (on the basis of the court's knowledge and experience) the fee to which a hypothetical counsel capable of conducting the case effectively would be content to take on the brief, bearing in mind that such hypothetical counsel does not insist on the particularly high fees sometimes demanded and obtained by "fashionable" counsel. He suggested that this approach had been applied in a number of Hong Kong decisions, such as Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1982] HKLR 387 and Ngan Wun Yeung v Lok Sin Tong Benevolent Society, Kowloon [2000] 2 HKC 404, and was supported by the commentary in the Hong Kong Civil Procedure 2004 (at para 62/App/31).

15. In my view, it is not possible to equate the test to be applied to the taxation of counsel's fees laid down in paragraph 2(5) of Part II of the First Schedule to Order 62 to that applicable to party and party taxations under Order 62 rule 28(2). Paragraph 2(5) of Part II of the First Schedule is a provision that is peculiar to Hong Kong. It did not exist under the equivalent rules applicable in England prior to the Woolf reforms. It has recently been described as "exceptional" by the Chief Justice's Working Party on Civil Justice Reform in its Final Report, since it provides a substantially more generous basis of taxation for counsel's fees in party and party taxations (to which it applies by virtue of rule 32(1)) than for other items in such taxations. The question that is to be asked when considering counsel's fees is whether such fees are "excessive and unreasonable" - if they are not, they are to be allowed in full on taxation. This wording is very different from the test of "necessary or proper" which applies to party and party taxations. It resembles most closely the wording of Order 62 rule 29(1), applicable to the taxation of costs between a solicitor and his own client, where all costs are to be allowed unless they are of an "unreasonable amount" or have been "unreasonably incurred", and which is clearly a more generous basis of taxation than the party and party basis. Further, paragraph 2(5) provides that where the taxing master is satisfied that the fee is "excessive and unreasonable", he should exercise his discretion having regard to all the relevant circumstances and in particular the matters set out in paragraph 1(2) of this Part of the Schedule. Paragraph 1(2) itself states that it is applicable to (inter alia) the exercise by a taxing master of his discretion under rule 32(2), which, as noted above, applies to solicitor and own client and trustee taxations. This is a further indication that a more generous basis than that applicable to a party and party taxation is to be applied to counsel's fees, whatever the basis of taxation.

16. I do not see any particular difficulty in adopting the comparative approach suggested by the Simpsons Motor Sales case in considering whether counsel's fees in a given case are excessive and unreasonable, so long as in doing so, it is remembered that one is doing so on a more generous basis than that applicable to other items in a party and party taxation. I do not regard either of the Hong Kong cases relied upon by Mr Thomas as requiring me to apply any different principle.

17. In the Tai Hing case, the actual issue for consideration was not the level of counsel's fees, but whether or not certain additional items paid to London counsel such as first class airfares, travelling time and hotel expenses should be allowed on a party and party taxation. It does appear from the judgment, however, that Rhind J applied the "necessary or proper" test to the taxation of these items, and that it does not appear to have been argued that this was not the correct test to apply. For the reasons which I have given above, insofar as Rhind J applied the "necessary or proper" test, I would respectfully disagree with its application to counsel's fees. However, having regard to the very substantial difference between what Hong Kong leading counsel would have charged compared to London counsel's brief fee (and the even greater difference when compared to the brief fee plus additional expenses) it is understandable that Rhind J took the view that the cost of the additional items should not be allowed on a party and party taxation.

18. In Ngan Wun Yeung, it would appear that Master Poon in fact applied the "excessive and unreasonable" test (see his judgment at 417G and 418B). His adoption of Simpsons Motor Sales was not in respect of the comparative approach, but in relation to its rejection of the suggestion that what the paying party had itself paid its counsel was an appropriate yardstick by which to judge the fees of the receiving party's counsel.

19. I also note that in Xinyuan Trading Co. Ltd v N P H Petrochemical Ltd (unreported, HCA 18159/98 and CACV 276/98, Master Poon, 25 September 2000), which was also cited to me in a different context by Mr Thomas, that Master Poon taxed down a brief fee paid to leading counsel on the basis that it was "unreasonable and excessive".

20. I therefore approach the question of the quantum of counsel's fees that are challenged on the basis that they are to be disallowed or reduced only if they are excessive and unreasonable, and that this requires the adoption of a more generous basis that would otherwise be applicable on a party and party taxation.

21. Approached on this basis, I am unable to see that the fees allowed by Master Woolley in respect of Mr Chang S.C.'s brief can be said to be excessive or unreasonable. Viewed in isolation, a brief fee of HK$200,000.00 in respect of counsel of the seniority and experience of Mr Chang, for an application in respect of which he was instructed on an urgent basis, and which (as is apparent from the judgment of Le Pichon J) involved difficult questions of law, and was no doubt of considerable importance to his client, who had invested some US$80 million in GBRE and had seen its interest in that company shrink from around 18% to less than 5%, does not strike me as being either excessive or unreasonable, even though it may be higher than other counsel might have charged.

22. Moreover, I do not consider that the other points made on behalf of Mr Ho can withstand scrutiny.

23. First, I do not consider that it is appropriate to aggregate the fees charged by leading and junior counsel and ask whether the total of their fees can be regarded as "excessive and unreasonable". In this case, the question of whether or not it was appropriate for two counsel to have been instructed was not a matter for Master Woolley to consider, Always Win having successfully applied for a certificate for two counsel from Deputy Judge To in the course of their application for the costs of the various applications that had been heard by Le Pichon J. It was open to Mr Ho to argue this point before Deputy Judge To. It appears that no submissions were made at that point in opposition to the application for certificate for two counsel. Having had the opportunity to argue the point, and having foregone it and had the decision go against him, it is no longer open to Mr Ho at the taxation stage to seek in effect to reopen the point in this way. No doubt if there had been no application for a certificate for two counsel, the question of whether or not this was an appropriate case for two counsel to have been instructed, and if not, whether leading counsel should have been instructed, or junior counsel only, would have been matters which were open for argument before Master Woolley. But the point having been raised before and decided by Deputy Judge To, it was no longer open at this stage.

24. Second, just as the fees paid by Mr Ho to counsel instructed by him are not of particular relevance when considering the appropriateness of the fees paid by Always Win to its counsel (see paragraph 18 above), it seems to me that the fees charged by Mr Harris for the Five Shareholders are similarly of limited relevance. Given that it has been determined by Deputy Judge To that it was appropriate for Always Win to instruct two counsel, it seems to me that the relevant question is whether the fee allowed in respect of Mr Chang S.C.'s brief is unreasonable and excessive compared to what other suitably qualified senior counsel might have charged. In my view, it was not.

25. Third, as to the question of the representation necessary at the hearing on 24 November 1999 on the basis that that hearing involved Always Win playing a supporting role, as it did not have an application of its own, this too was a matter which seems to me to be concluded by Deputy Judge To's granting of certificate for two counsel for this and the other hearings. Moreover, Mr Wong, appearing for Always Win before me, drew my attention to the fact that Mr Chang had been involved in advising Always Win for some time in relation to its position as a shareholder of GBRE. That being so, even if the matter were open for reconsideration before me, it seems to me that it would have been proper for Always Win to have wished to have the same counsel represent it wherever possible, particularly in light of its very substantial investment (at least in monetary terms) in GBRE. To my mind, this applies to both the question of whether separate representation was appropriate, and to the question of the number of counsel that should have been instructed.

26. Finally, so far as the suggestion that a reduction should be made to reflect the fact that parts of the application were not proceeded with at the hearing on 24 November 1999, it seems to me that this is of limited relevance so far as Always Win was concerned, given that it was not its own application. In any event, it does not seem to me to follow that simply because certain aspects of the relief sought were not pressed for (or not obtained after argument) that much of the preparatory work that would have been necessary for such a hearing would have been wasted, or would not have had to be done had there been a more limited form of application from the outset. It would no doubt have remained necessary for counsel to have mastered the underlying facts in respect of what appear to have been complex transactions, in order to present whatever application was in fact made.

27. For all of these reasons, I decline to disturb the decision of Master Woolley in relation to this item.

Objection 2

28. The second objection relates to a fee for perusal of incoming papers and communications with instructing solicitors over the period from 25 November 1999 to 9 December 1999 by junior counsel, Ms Eliza Yiu. The amount claimed was HK$25,000.00, in respect of 12 hours work. This was reduced on taxation to HK$12,500.00, an amount which was confirmed by Master Woolley on review.

29. In confirming the amount which he had initially allowed, Master Woolley stated that he regarded this item as "reasonable". Mr Thomas submitted that this applied the wrong test, in that the correct test was whether or not the item was "necessary or proper". For the reasons which I have already given, I do not consider that Master Woolley applied the wrong test. Given that there appears to have been a substantial amount of documentation which had to be considered in a fairly short time frame, it seems to me that the allowance of HK$12,500.00 in respect of this cannot be seriously faulted, and I confirm Master Woolley's decision in this regard.

Objection 3

30. This relates to Mr Chang S.C.'s fees for perusal of papers over the same period. The original amount claimed of HK$30,000.00 was reduced by Master Woolley on taxation to HK$15,000.00, which he confirmed on review. As with junior counsel's fees, Master Woolley considered that the reduced amount allowed was reasonable.

31. While I am of the view that this was the appropriate test to apply, it appears from the bill of costs that Mr Chang's fees for a consultation which took place on 9 December 1999 were stated to be inclusive of perusal of papers. In these circumstances, it seems to me that it could properly be said to be unreasonable for a separate charge to be made for perusal of papers. I would therefore vary the decision of Master Woolley by allowing this objection, and disallowing the amount of HK$15,000.00 in respect of this item.

Objection 4

32. This objection related to a fee charged by Ms Yiu for perusal of papers. The amount involved was only some $2,500.00, and this was not pursued by Mr Thomas at the hearing before me. I therefore confirm Master Woolley's decision in relation to this item.

Objection 5

33. This related to Mr Chang's brief fee for the hearing of the various summonses that were before Le Pichon J on 13 January 2000. The fee charged was HK$250,000.00. This was reduced on taxation (and confirmed on review by Master Woolley) to HK$220,000.00. Mr Ho's objections to this item were as follows:-

(1) Using the hypothetical counsel test, the aggregate fee allowed in respect of Mr Chang and his junior, Ms Yiu, was excessive compared to the amount allowed in respect of Mr Harris, who appeared for the Five Shareholders.

(2) The brief fee charged by junior counsel (HK$60,000.00) was excessive.

(3) There was duplication of work between senior and junior counsel.

(4) The hearing was in part a hearing of Always Win's summons dated 10 January 2000, which sought the same relief as had been afforded to the Five Shareholders by the order made on 24 November 1999. The hearing should therefore be regarded as a continuation of the hearing of the Five Shareholders' summons of 23 November 1999, and this should be taken into account in considering the appropriateness of the fee allowed.

(5) Master Woolley applied the wrong test, in that he asked himself whether the fee was reasonable, and not whether it was necessary or proper.

(6) Dealing with the last of these points first, for the reasons which I have explained above, I do not regard the failure to apply the "necessary or proper" test as having been incorrect as a matter of law.

34. So far as the first point is concerned, this is essentially the same point as was made in relation to Mr Chang's brief fee for the hearing on 24 November 1999, and I reject it for the reasons given in paragraphs 23 and 24 above.

35. I do not see the relevance of the suggestion that junior counsel's brief fee was excessive when this fee was not the subject of any objection before me. Even if it might be regarded as excessive or unreasonable in itself, this cannot, in my view, affect the assessment of the appropriate level of Mr Chang SC's fees.

36. The contention regarding duplication of work is one which is generally made in the context of the charges of a party's solicitors, where more than one fee earner is involved in the same piece of work - in such circumstances, the normal approach is to allow only one set of fees. I do not think that this approach is appropriate in relation to counsel's fees where the matter has been certified as being fit for two counsel. In such a case, the court having considered the matter and come to a view on it, it cannot be assumed (and would not, I think, be open to a paying party to suggest) that both counsel were in fact engaged on work that involved duplication of their efforts.

37. Finally, I am unable to accept the suggestion that the hearing on 13 January 2000 should be regarded as simply a continuation of the earlier hearing on 24 November 1999. It seems clear to me that it was not. So far as Always Win was concerned, it was the first occasion on which it had made its own application, even though that application may have been in respect of similar orders to those obtained by the Five Shareholders earlier. Moreover, the argument on this occasion lasted three days, as opposed to a little under a day on the first occasion, so it is fair to infer that the matter was more fully prepared and argued at this hearing. It is also, I think, fair to have regard to the fact that there was substantially more evidence before the court, and that all parties had filed a number of further affidavits and affirmations between the two hearings. The hearing bundles extended to some 8 lever arch files. All of these are factors which indicate that there was nothing inappropriate in a fresh brief having been charged for this hearing, and for it to have been allowed at the level at which Master Woolley taxed it.

Objections 6 and 7

38. These objections are to the level of refreshers charged by Mr Chang, SC and allowed by Master Woolley at HK$75,000.00. The basis of the objection is that to allow a total of HK$105,000.00 for counsel's refreshers (HK$75,000.00 for Mr Chang and HK$30,000.00 for Ms Yiu) is excessive, having regard to the hypothetical counsel test, and the actual fees charged by Mr Harris, and by Mr Ho's own counsel, Mr Bleach, SC. The suggestion is also made that there was duplication of work between senior and junior counsel. I have considered and rejected each of these points in the context of Objections 1 and 5 above, and reject them in this context also. In all the circumstances of the case, I am not of the view that Mr Chang's refreshers are either excessive or unreasonable.

Objection 8

39. The final objection that was raised was that there had been some eight months delay between the making of the relevant costs orders on 21 March 2002 and the issuance of Always Win's bill of costs on 6 November 2002. In his oral submissions, Mr Thomas also sought to rely on the fact that some two years elapsed between Le Pichon J's judgment in February 2000 and the making of the costs orders in March 2002. He submitted that the overall delay was such as to justify the making of a global reduction of some 10%. In support of this submission, he referred me to the provisions of Order 62 rule 22(3) which gives the court power to make appropriate orders to sanction undue delays by the receiving party in the taxation process, and to Attorney-General v Commodore Electronics Ltd [1994] 1 HKC 660, where Master Gould made a global reduction of 20% in a case in which there had been a delay of nearly two years in taxation of a bill of costs, five months having elapsed after the making of the costs order before instructions for the preparation of the bill were given, the bill (consisting of some 42 items) having taken a year to prepare, and a further five months having passed before the draft bill was sent to the other party's solicitors.

40. In my view, it would not be appropriate to have regard to the period before the costs order was made by Deputy Judge To, since prior to that date, there was no costs order in favour of Always Win which could have been the subject of taxation.

41. So far as the delay after the making of the costs order was concerned, Mr Wong informed me that it was necessary to go through a considerable amount of documentation to extract the material necessary to enable the bill of costs to be drafted. The documents were then sent, in early June 2002, to a law costs draftsman who was also instructed to draft a bill of costs for the Five Shareholders. In the event, the draft bill was prepared and sent to Mr Ho's solicitors on 6 September 2002. No response to the bill having been received, the bill of costs was filed and an appointment to tax issued on 6 November 2002. The bill of costs covered several hundred items and ran to some 60 pages. It seems to me that the situation here was very different from that in the Commodore Electronics case - the applications under consideration were much more complex, the quantity of documentation was significantly greater and the amount of detail and material in the bill of costs here very greatly exceeded those in the Commodore Electronics case. Having examined the bill itself, I do not think that it could be said that to have taken some three months to collate all the relevant material and send it to the law costs draftsman with instructions to prepare a bill of costs, and for the law costs draftsman to have taken about 3 months to prepare the bill, can be said to involve undue delay on the part of those acting for Always Win. Once the draft bill was prepared and sent to Mr Ho's solicitors, it seems that there was no response - in these circumstances, I do not see that any blame should be laid at the door of those acting for Always Win in waiting for about two months before taking out the appointment to tax.

42. For all of these reasons, I do not consider that there has been any undue delay on the part of those acting for Always Win, and I reject this objection.

43. Thus, save for Objection 3 which I allow, I reject all of the objections which have been raised before me.

Costs

44. At the end of the hearing before me, Mr Wong for Always Win submitted a skeleton bill of costs in respect of the review hearing before Master Woolley and of the hearings before me (there having been an earlier callover hearing on 13 November 2003), and invited me to make a gross sum assessment of Always Win's costs in the event that Always Win succeeded on Mr Ho's summons for review. Mr Thomas did not have any submissions to make as to the quantum of these costs. However, as Mr Thomas had not prepared a similar skeleton, I gave leave for him to put in a skeleton bill of costs on behalf of Mr Ho. This was subsequently submitted, and was responded to by those acting for Always Win, who took the opportunity to amend their own skeleton bill to take account of a small amount of post-hearing work. No submissions were made by those acting for Mr Ho as to these further items.

45. In the result, Always Win has been successful in relation to all except one of the objections pursued by Mr Ho. Having regard to the very limited success which Mr Ho's application has met with, I am of the view that the appropriate costs order would be for Mr Ho to pay to Always Win 90% of its costs of the application, and I include in these costs the costs of the call over hearing before me on 13 November 2003, having taken into account the submissions as to the costs of that hearing, which were made by Mr Ho's solicitors in the correspondence to which I have just referred. It seems to me that it was inevitable that the hearing would have proceeded as a call over hearing, and that attendance of the parties would have been required. So far as the costs of the review hearing before Master Woolley are concerned, I would vary the costs order made by Master Woolley so as to award to Always Win 80% of its costs of that hearing, having regard to the further objection which I have now upheld.

46. As Always Win's costs for the hearing before Master Woolley were HK$4,800.00, I shall make an order that Mr Ho should pay Always Win 80% of that sum, or HK$3,840.00, by way of gross sum assessment of its costs of that hearing. As Always Win's costs of the application before me totalled HK$29,255.00, I shall make an order that Mr Ho should pay it 90% of that sum, or HK$26,329.50, by way of gross sum assessment of its costs of this hearing.