RE LO TAK WING BENSON

CACV 26/2022

[2023] HKCA 867

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 26 OF 2022

(ON APPEAL FROM HCB NO. 4242 OF 2021)

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DECISION ON ASSESSMENT OF COSTS
AND PAYMENT OUT

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Hon Chu VP giving the judgment of the Court:

1.  On 17 February 2023, we handed down our judgment ([2023] HKCA 192)  dismissing the debtor’s appeal against the bankruptcy order made against him on 22 December 2021.  We also ordered (at [21])  that the debtor pays the petitioner the costs of the appeal to be paid out of the debtor’s estate.

2.  By her solicitors’ letter dated 14 June 2023 (“the Letter”), the petitioner asked for (1)  gross sum assessment of her costs of the appeal; and (2)  out of the sum of HK$116,000 paid into court by the debtor, (a)  the payment out of HK$46,000 to her solicitors in satisfaction of her costs of the application for security of costs, and (b)  the payment out to her solicitors of the remaining balance or such lesser sum in satisfaction of her costs of the appeal as assessed.

3.  The sum of HK$116,000 was paid into court by the debtor pursuant to this Court’s order dated 3 August 2022 ([2022] HKCA 1125)  made upon the petitioner’s application for security for costs.  The sum comprised (1)  the petitioner’s costs of the application for security for costs in the sum of HK$46,000; and (2)  security for the petitioner’s costs of the appeal in the sum of HK$70,000.

4.  The Joint and Several Trustees-in-bankruptcy by letter to the petitioner’s solicitors dated 13 June 2023 confirmed that they have no objection to the petitioner’s requests.  The Trustees had obtained confirmation and proof from the debtor that the money paid into court came from a third party.

5.  To save costs, we will treat the Letter as an application.  We would however point out that the proper course is to apply by summons with supporting affidavit.

6.  We have considered the statement of costs dated 20 February 2023 attached to the Letter.  We take note that (1)  the appeal was straightforward, with very little documentation, and did not involve any difficult or complex issue of law or fact; and (2)  the costs are to be assessed on party-and-party basis. We are of the view that the costs or time occurred for items B1 (photocopying charges of 1000 pages), C1 and C4 (attendances on client and counsel)  are excessive and should be reduced.  Further, for items D1(iii)  (preparation of judgment), D2(i), (v)  and (vi)  (perusal of notice of appeal, debtor’s and petitioner’s written submissions), only the costs of one fee earner is to be allowed. Taking a broad brush approach, we summarily assess the petitioner’s costs of the appeal at HK$80,000.

7.  Accordingly, we make the following orders:

(1)  The petitioner’s costs of the appeal is summarily assessed at HK$80,000.

(2)  The sum of HK$116,000 paid into court by the debtor be paid out to the petitioner’s solicitors in satisfaction of the petitioner’s costs of the application for security for costs (in the sum of HK$46,000)  and in partial satisfaction of the petitioner’s costs of this appeal as assessed under (1)  above.