XCHRX The Incorporated Owners of Honour Building v. LOU CHUI SIM

FOR REFERENCE

LDBM 266 & 373/1999
(Consolidated)

HEADNOTE

Costs - Taxation - Lands Tribunal - High Court - Order 62 - Jurisdiction

The Respondents lost their cases in the Lands Tribunal and were ordered to pay costs to be taxed. The Applicant filed bill of costs in the Tribunal. The Deputy Registrar of the Tribunal issued notice of provisional taxation. When the Respondents objected and sought taxation by appointment, they were referred to the District Court. In due course, the District Court treated the objection as an application for review of final taxation and fixed appointment before a master of the District Court. The master dismissed the application on the ground that it was out of time for review.

Held: (1) By reference to court file records, the Respondent's objections were filed with the curt before final taxation certificate was issued; hence the objection, if treated as application for review, were not out of time; (2) in any event, since the court was empowered to extend time, the master should have considered all relevant factors and circumstances to see if discretion could be exercise to allow application out of time rather than to dismiss the application simply on the ground that it was late; (3) according to section 12 (2) of the Lands Tribunal Ordinance, Cap. 17 and Order 62 of the Rules of the High Court, Cap. 4, taxation of costs in Lands Tribunal cases should be dealt with by taxing master of the High Court in the High Court; (4) accordingly, the decision of the master was set aside and the matter of taxation transferred to the High Court.

LDBM 266 & 373/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LDBM No. 266 & 373 OF 1999 (Consolidated)

__________

__________

______________

Judgment

______________

1. On 11th September 2000, the Lands Tribunal gave judgment against the two Respondents with costs to the Applicant. On 6th February this year, solicitors for the Applicant submitted their bill of costs to the Lands Tribunal for taxation. On 8th March this year, the Acting Deputy Registrar of the Lands Tribunal issued a notice the contents of which are reproduced below:-

「IN THE LANDS TRIBUNAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NOTICE TO THE PARTY COMMENCING
THE PROCEEDINGS FOR TAXATION

The Rules of the High Court
[Order 62 Rule 21 (4)]

Lands Tribunal Application No. LDBM 266/1999

NOTICE IS HEREBY GIVEN that the Registrar proposes to allow in respect of the costs of the Applicant herein -

	Common Fund	Party & Party
Profit costs ....................	-	$43,336.00
Disbursements ...............	-	$ 972.50
Taxing fee .....................	-	$ 2,220.00
	____________	_________
	-	$46,528.50
	____________	_________

2． Those items which have been totally or partially taxed off or otherwise are listed overleaf.

3． Any party who is dissatisfied with the amount proposed to be allowed may apply in writing within 14 days after service of this Notice on him to the Registrar for an appointment* to have the Bill of Costs taxed.

4． The party on whose behalf the Bill has been lodged shall serve a copy of this Notice together with a copy of the Bill on every person entitled to be heard on taxation, UNLESS he intends to apply for an appointment to tax* in which case the Bill of Costs shall be served together with a Notice of such an appointment.

Dated the 8th day of March, 2001.

 

	......................................................
	(S. W Chan)
	Acting Deputy Registrar, Lands Tribunal

 

To:	Messrs. Y.T. Szeto & Company
	Solicitors
	Units 701-2 Golden Centre
	188 Des Voeux Road Central, H.K.
	(Ref.: AS/6447/99/BT)

*Remark:- Please approach the Taxation Clerk at District Court Registry for a date to be fixed for taxation call-over before a District Court Master. 」

2. According to what the 2nd Respondent (representing himself and his mother the 1st Respondent) told me, the Respondents were aggrieved by last year's judgment after trial and the provisional taxation in the said notice this year and wanted to appeal. On 23rd March this year, the Respondents applied to the Legal Aid Department for assistance for appeal. On 26th April this year, the Legal Aid Department issued notice that assistance had been denied. Subsequently, although the Respondents appealed against the decision of the Director of Legal Aid, the appeal has been dismissed.

3. According to the 2nd Respondent, the Respondents received the notice from the Legal Aid Department of refusal of assistance only on 29th April this year. On 2nd May this year, pursuant to advice from staff of the Lands Tribunal, he made a written request to the Registrar, District Court for appointment for taxation. The court file record shows that the Respondents' said written request was received by the District Court on 9th May only. On 11th May, the Registrar, District Court, issued a document as follows:-

「IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
LDBM NO. 266 OF 1999

Between
	The Incorporated Owners of Honour Building	Applicant
	and
	LIU Chui Sim	1st Respondent
	WONG Kwong Wai	2nd Respondent

_____________________

APPOINTMENT TO REVIEW PROVISIONAL TAXATION

Upon the receipt of Notice of Objection to provisional taxation from the 1st Respondent, I hereby appoint Tuesday, the 29th day of May, 2001 at 10:30 0'clock in the forenoon in the Master's Chambers in Court No. 45 on the 12th floor of District Court, Wanchai Law Courts, Wanchai Tower, 12 Harbour Road, Hong Kong, to review the Applicant's costs herein. Please file to court and serve on the Applicant a list of objections 7 days before the hearing.

Dated the 11th day of May, 2001.

 

	(S.K. Chan)
	for Registrar, District Court」

4. However, on 10th May, viz. one day after the District Court received the Respondents' written request for taxation of the Applicant's costs and one day before the Registrar, District Court issued notice of appointment to review provisional taxation, the Registrar of the Lands Tribunal issued an allocutor as below:-

「LDBM 266/1999

IN THE LANDS TRIBUNAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
Building Management Application No. 266 of 1999

***************

Between
	The Incorporated Owners of Honour Building	Applicant
	and
	LIU Chui Sim	1st Respondent
	WONG Kwong Wai	2nd Respondent

***************

ALLOCATUR

I, HEREBY CERTIFY that the bill of costs of Messrs. Y.T. Szeto & Company, Solicitors against the 1st and 2nd Respondents has been taxed by the Registrar of the Lands Tribunal on the 8th day of March 2001 pursuant to the Order to Deputy Judge Tong dated 16th August 2000 and are allowed at as follows:-

	PARTY & PARTY (HK$)
	Profit costs	43,336.00
	Disbursements	972.50
	Taxing fee	2,220.00
		_________
	Allowed at	46,528.50
		_________
	Dated the 10th day of May, 2001.

 

	(SUEN Yun-chai)
	Registrar Lands Tribunal」

5. On 29th May 2001, the parties appeared before Master Chow in chambers for the "review" hearing in accordance with the notice issued by the Registrar, District Court. The court file record shows that Master Chow, citing Order 62 Rule 33 (2), found the application for review out of time and so the Respondents' application was dismissed without proceeding with review. Hence the Respondents applied in writing on 12th June 2001 to set aside the order made by the master on 29th May and to seek an order for taxation by appointment.

6. It should be pointed out that there are two actions herein and hence two sets of costs, orders and documents. Since the case for the two actions are the same, the only difference being the amount of costs, my analysis in one of the actions is deemed applicable to the other action.

The decision of the master

7. The provisions of Order 62 Rule 33 (2) in the Rules of the District Court, Cap. 336 and in the Rules of the High Court Cap. 4 are identical. The full text thereof can be seen as quoted later in this judgment. The "final" certificate of taxation was issued on 10th May. But without doubt the Court received the written objection from the Respondents on 9th May. The learned Master's view, that the written objection was a late application for review after the signing of final certificate, obviously does not accord with the facts. His decision ought to be set overturned.

8. Even if, i.e. assuming that, the Respondents' application was out of time, Order 62 Rule 16 in the Rules of the District Court, Cap. 336 and in the Rules of the High Court, Cap. 4 provide in the same terms that:-

「16. Extension etc., of time (O. 62, r. 16)

(1) A taxing master may-

(a) extend the period within which a party is required by or under this Order to begin proceedings for taxation or to do anything in or in connection with proceedings before that master;

(b) extend the period provided by rule 33 (2) beyond the signing of the taxing officer's certificate by setting the certificate aside;

(c) where no period is specified by or under this Order or by the Court for the doing of anything in or in connection with such proceedings, specify the period within which the thing is to be done.

(2) Where an order of the Court specifies a period within which anything is to be done by or before a taxing master, then unless the Court otherwise directs, the taxing master may from time to time extend the period so specified on such terms (if any) as he thinks just.

(3) A taxing master may extend any such period as is referred to in the foregoing provisions of this rule although the application for extension is not made until after the expiration of that period.」

In other words, the Court must consider whether to allow the out of time application by the Respondents. This involves the exercise of a discretion. Proper exercise of discretion, as is well known, must take into account all factors and circumstances. Refusing to consider review simply because of time having expired is no more than hard and fast application of time limitation and not an exercise of discretion. As the learned master exercised his power of discretion to refuse an out of time application without using discretion, his order naturally again ought to be set aside.

9. If I were to exercise the power of discretion, I must bear in mind that the Respondents received the notice from the Acting Deputy Registrar of the Lands Tribunal in March, that there were 14 days, counting from the date of receipt of notice, to raise objections, and that the Respondents applied for legal aid on 23rd March when there were still a few days left to raise objections. Since the law provides that time temporarily stops to run during consideration of application for legal aid and continues to run only when the Director of Legal Aid has decided, the Respondents still had a few days to run from 29th April. In any event, when the court received the Respondents' written application on 9th May, the Respondents were out of time no more than a couple of weeks. Courts often give leave to practitioners to file documents etc. long out of time, why hold the unrepresented Respondents strictly to the time limit? I would allow the Respondents' application out of time.

Taxation procedure

10. I observe also that the notice quoted supra dated 8th March was issued by the Acting Deputy Registrar of the Lands Tribunal under Order 62 Rule 21 (4) of the Rules of the High Court, Cap. 4. The provision cited by the Deputy Registrar is correct because these are Lands Tribunal cases and section 12 (2) of the Lands Tribunal Ordinance, Cap. 17 provides that:-

(2) Subject to any rules made by the Chief Justice under section 10 (3), Order 62 of the Rules of the High Court (Cap. 4 sub.leg.) shall apply to the award, taxation and recovery of costs in the Tribunal.

11. Going through the Rules of the High Court, Cap. 4, I find the following relevant provisions:-

"Order 1

(HK) "Registrar" (司法常務官) means the Registrar of the High Court, and includes a Deputy Registrar or an Assistant Registrar;

"master" (聆案官) means a master of the High Court and includes the Registrar, and Deputy and Assistant Registrars;

(2) (2) In these rules, unless the context otherwise requires, "the Court" (法院、法庭) means the Court of First Instance or any one or more of the judges thereof whether sitting in court or in chambers or the Registrar or any master but the foregoing provision shall not be taken as affecting any provision of these rules and, in particular, Order 32, rule 11 by virtue of which the authority and jurisdiction of the Registrar is defined and regulated.

Order 62 (Rule 1)

"certificate"（證明書）includes allocatur;

"costs"（證費）include fees, charges, disbursements, expenses and remuneration;

"taxed costs"（經評定的訟費）means costs taxed in accordance with this Order; (HK) "taxing master"（訟費評定官）means the Registrar as taxing master.

2. Application (r. 2)

(HK) (1) This Order shall apply to all proceedings in the Court, except non-contentious or common form probate proceedings and proceedings in matters of prize.

(2) Where by virtue of any Ordinance the costs of or incidental to any proceedings before an arbitrator or umpire or before a tribunal or other body constituted by or under any Ordinance, not being proceedings in the High Court, are taxable in the Court of First Instance, the following provisions of this Order, that is to say, rule 7 (4) and (5), rule 8 (6), rules 14 to 16, rule 17 (1), rule 18, rule 21 (except paragraph (3)), rules 22 to 26 and rules 33 to 35, shall have effect in relation to proceedings for taxation of those costs as they have effect in relation to proceedings for taxation of the costs of or arising out of proceedings in the High Court.

(3) This Order shall have effect subject to the provisions of the District Court Ordinance (Cap. 336) and to any rules made thereunder and to any other enactment.

12. Powers of taxing masters to tax costs (r. 12)

(1) A taxing master shall have power to tax-

(a) the costs of or arising out of any cause or matter in the High Court;

(b) the costs directed by an award made on a reference to arbitration under any enactment or pursuant to an arbitration agreement to be paid; and

(c) any other costs the taxation of which is directed by an order of the Court.

13. Powers of certain judicial clerks to tax costs (r. 13)

(HK) (1) A Chief Judicial Clerk shall have power to transact all such business and exercise all such authority as under paragraph (4) of rule 21 of this Order may be transacted and exercised by the Registrar and to issue a certificate for any costs taxed by him.

(2) Paragraph (1) shall not be taken as empowering a Chief Judicial Clerk to tax any costs in respect of which an appointment to tax has been given.

(3) In exercising the powers conferred on him by this Order, a Chief Judicial Clerk shall comply with any directions given to him by a taxing master.

21. Mode of beginning proceedings
for taxation (r.21)

(HK)(1) A party entitled to require any costs to be taxed shall file in the Court his bill of costs and shall obtain from the taxing master an appointment to tax.

(HK)(2) Not less than 7 days' notice of such appointment to tax together with a copy of the bill of costs shall be served by such person on every person entitled to be heard on taxation.

(HK)(3) Except where an order for the taxation of the bill of costs of a solicitor is made under section 67 of the Legal Practitioners Ordinance (Cap. 159) at the instance of the solicitor, it shall not be necessary for a copy of the bill of costs or of the notice of appointment to tax to be sent to any party who has not acknowledged service in the proceedings which gave rise to the taxation.

(HK)(4) In proceedings for the taxation of costs of, or arising out of, a cause or matter in which the amount of the bill of costs does not exceed the sum of $100,000, the taxing master may be notice inform the party commencing the proceedings for taxation the amount which the taxing master proposes to allow in respect of the costs to be taxed and further the taxing master shall not give any notice under paragraph (2) unless, within 14 days after serving notice of the amount he proposes to allow, any person entitled to be heard on taxation applies to the taxing master for an appointment to tax.

(HK)(5) A party must, when he files his bill of costs, deposit with the Court an amount equivalent to the taxing fee which would be payable if the bill were to be allowed in full. When the taxing master signs a certificate, the balance of the sum so deposited, if any, after deducting the prescribed taxing fee, shall be repaid to the party who deposited such amount.

(HK)(6) If a bill of costs is withdrawn less than 7 days before the appointment for taxation, a fee shall be payable by the party who withdraws the bill.

(HK)(7) The fee payable under paragraph (6) shall be deducted by the Court from the amount deposited under paragraph (5).

33. Application to taxing master for review (r.33)

(1) Any party to any taxation proceedings who is dissatisfied with the allowance or disallowance in whole or in part of any item by a taxing master, or with the amount allowed by a taxing master in respect of any item, may apply to the taxing master to review his decision in respect of that item.

(2) An application under this rule for review of a taxing master's decision may be made at any time within 14 days after that decision or such shorter period as may be fixed by the taxing master.

Provided that no application under this rule for review of a decision in respect of any item may be made after the signing of the taxing master's certificate dealing finally with that item.

(3) Every applicant for review under this rule must at the time of making his application deliver to the taxing master objections in writing specifying by a list the items or parts of items the allowance or disallowance of which or the amount allowed in respect of which, is objected to and stating concisely the nature and grounds of the objection in each case, and must deliver a copy of the objections to each other party (if any) who attended on the taxation of those items or to whom the taxing master directs that a copy of the objections shall be delivered.

(4) Any party to whom a copy of the objections is delivered under this rule may, within 14 days after delivery of the copy to him or such shorter period as may be fixed by the taxing master, deliver to the taxing master answers in writing to the objections stating concisely the grounds on which he will oppose the objections, and shall at the same time deliver a copy of the answers to the party applying for review and to each other party (if any) to whom a copy of the objections has been delivered or to whom the taxing master directs that a copy of the answers shall be delivered.

(5) An application under this rule for review of the taxing master's decision in respect of any item shall not prejudice the power of the taxing master under rule 17 to use an interim certificate in respect of items his decision as to which is not objected to.

34. Review by taxing master (r.34)

(HK)(1) A review under rule 33 shall be carried out by the taxing master to whom the taxation was originally assigned.

12. In view of Order 62 Rule 2(3) of the Rules of the High Court, Cap. 4, I have looked into the District Court Ordinance and the Rules of the District Court, Cap. 336. As far as I can see, the District Court Ordinance, Cap. 336 does not contain any provision that affects Order 62 of the Rules of the High Court, Cap. 4. As to the Rules of the District Court, Cap. 336, its contents and provisions are modelled on the Rules of the High Court, Cap. 4. Except for differences in the necessary reference, such as references to the High Court changed to references to the District Court, the Rules of the District Court, Cap. 336 is basically identical to the Rules of the High Court, Cap. 4. However, it has to be emphasized, Order 62 Rule 2 of the Rules of the District Court, Cap. 336 does not contain provisions similar to Order 62 Rule 2(2) of the Rules of the High Court, Cap. 4. In fact, Order 62 Rule 2(1) of the Rules of the District Court, Cap. 336 provides that "This Order shall apply to all proceedings in the Court." In other words, that Order 62 does not apply to non-District Court proceedings. On the other hand, Order 62 Rule 2(2) of the Rules of the High Court, Cap. 4 that expressly adopts High Court procedure for taxation of costs of tribunal litigation corroborates Section 12(2) of the Lands Tribunal Ordinance, Cap. 17.

13. According to Order 62 Rule 21 of the Rules of the High Court Cap. 4, after the Lands Tribunal has ordered taxation of costs, the bill of costs should be filed in the High Court, not in the Lands Tribunal or District Court, because the taxation procedure ought to be conducted in the High Court. In this respect, there was no legal basis for solicitors for the Applicant to file their bill of costs in the Lands Tribunal; and it was not in order for officers of the Lands Tribunal or the District Court to proceed with taxation.

14. According to Order 62 Rule 1 of the Rules of the High Court, Cap. 4 taxing masters are judicial officers of High Court Registrar grade. In practice, because of the combined effect of Order 62 Rule 13 and Rule 21, after the Court of First Instance has received bill of costs for taxation, a Chief Judicial Clerk (not a taxing master) will undertake preliminary taxation and issue a notice of provisional taxation. If the parties do not raise issue over the certificate, the amount of costs indicated in the certificate will automatically become confirmed. In case of dispute, the bill of costs has to be passed to a High Court taxing master for formal taxation by appointment and representation and evidence from the parties have to be heard.

15. In summary, taxation of Lands Tribunal costs should, according to the law, be handled in the Court of First Instance by a High Court taxing master (or Chief Judicial Clerk). However, for the two instant cases, when the Respondents requested taxation, staff of the Lands Tribunal referred them to the District Court, and the Registrar, District Court (acting through subordinates) took over the cases and fixed appointment for taxation by a Master of the District Court (Master Chow). Such steps were taken without lawful authority. Neither Master Chow nor the Court to which he is attached has the authority to handled taxation of the two instant cases.

16. In matters of taxation of costs in Lands Tribunal cases, neither I nor other district judges have jurisdiction, not to mention a master of the District Court. Nonetheless, because Master Chow and the Registrar, District Court have made decisions on matters relating to costs in the two instant cases, causing the Respondents to ask a district judge to intervene, I have to adjudicate on the validity of the decisions of the master and the Registrar.

17. As to why officers of the Lands Tribunal and the District Court did handle the matter of costs in the two instant cases, I asked my clerk to make enquiries with the Registries. Staff of the Registries have furnished me with two documents:-

(1) E-mail dated 1 August 2000 from
Acting Registrar, High Court to
Acting Registrar, District Court

「Christopher C Chan
2000/08/01 06:30 PM

To: Queeny KY AuYeung
cc: Dep Regr Lands & Regr Dist Ct
(E-mail addresses omitted)

Subject: Re: Taxation for Cases in the Lands Tribunal

Dear Queeny,
Thank you for the e-mail on the above subject. I agree with you on the points raised. Taxation of the Lands Tribunal Bills after 1 September should be done by District Court Masters as they are well qualified to do so. There is no reason for the High Court Masters to do the taxation as Section 2 of the Ordinance provides that the Registrar of the District Court shall be the Registrar of the Lands Tribunal. Taxation on whatever scale is only the basis of calculation and should not affect the jurisdiction at all.

I worked under the impression that there would not be any qualified person to act as the Registrar for the Lands Tribunal. It is now clarified; I do apologize for any confusion that has been caused.

Christopher」

(2) Extract of Memorandum dated 14 August 2000
from Acting Chief District Judge to all judges of
the District Court, Family Court and Lands Tribunal

「 MEMO
From Chief District Judge	To Judges and Deputy Judges, District Court, Family Court And the Lands Tribunal
Ref. in
Tel No. 2582-4127	Your Ref. in
Fax No. 2511-1940	Dated
Date 14 August 2000	Fax No.

The District Court (Amendment) Ordinance 2000

The District Court (Amendment) Ordinance 2000, the new Rules of the District Court, and Practice Direction 27 in respect of civil proceedings in the District Court shall come into effect on 1 September 2000. In a nutshell, the jurisdiction in respect of monetary claims will be increased to $600,000 (S.32), the jurisdiction for recovery of land will be increased to a rateable value of $240,000 (S.35), and the equity jurisdiction will be increased to $600,000 in respect of monetary claims, and $3,000,000 where land is involved, provided that the non-land portion, if any, does not exceed $600,000 (S.37).

2. A Masters' Office will also be in operation on the 12/F with effect from 1 September 2000. Ms Queeny Au-Yeung will be the Acting Registrar, District Court, assisted by Mr. Anthony Chow and Mr. C.K. Chan, Acting Registrars, District Court. The Registrar and Masters shall have all the jurisdiction of a District Judge in chambers, but it is envisaged that they will only deal with call-overs and cases of no serious disputes, while cases involving substantial arguments will be adjourned before judges in chambers. The Masters will also conduct call-overs for examination of debtors and taxation of bills of costs of the District Court, Family Court and the Lands Tribunal. Distraints and interpleaders will continue to be dealt with by judges.

3. ........

(Sd.) (B.W. Fung) Acting Chief District Judge

c.c.	Deputy Judge Hawkes, CFI (CDJ)
	Mr. Chu Wai-yim, Registrar, District Court
	Ms. Queeny Au-Yeung, Acting Registrar, District Court
	(Designate)
	Listing Officer, District Corut
	Assistant Listing Officer, District Court Registry 」

18. Since neither the then Acting (now substantive) Registrar, High Court nor the then Acting (now substantive) Chief District Court cited any directly relevant provision or precedent to support their opinion or directive on the matters in question, and apparently they did not study all the relevant provisions in the Lands Tribunal Ordinance, Cap. 17 and the Rules of the High Court, Cap. 4, it is not appropriate for me to stand by their position. But staff of the respective Registry of the District Court and of the Lands Tribunal may have been misguided by the contents of the said documents issued by the two senior judicial officers. Hence, although the Respondents herein may have cause to complain that they have been given the run around to no effect, I do not think subordinate officers of the Court and the Tribunal ought to be blamed.

Order

19. For all the reasons given above, I hold that all issues relating to costs in the two instant cases, including whether the Respondents raised objections in time, whether the Respondents may apply out of time for review of taxation, and if appropriate the taxation procedure ought to be dealt with by appropriate officers of the High Court in the High Court. Accordingly, I, in the dual capacity of district judge and presiding officer of the Lands Tribunal, order that:-

(1) the decision of the master made on 29th May 2001 be and is hereby set aside;

(2) matters relating to taxation of costs in the two instant cases be transferred to the Court of First Instance;

(3) no order as to costs incurred for whatever steps taken so far in relation to the matter of costs.