KWOK HONG YEE JESSE t/a JESSE H.Y. KWOK & CO. v. TSO HON LEUNG AND ANOTHER

CAMP 154/2020

[2021] HKCA 1391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 154 OF 2020

(ON AN INTENDED APPEAL FROM DCCJ NO. 5354 OF 2018)

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J U D G M E N T

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Hon Chu JA (giving the judgment of the Court):

A.  Introduction

1.  This is the 1^st and 2^nd defendants’ renewed application for leave to appeal against the decision of Her Honour Judge Tsui (“the Judge”)  given on 3 April 2020[1].  By her decision, the Judge dismissed the defendants’ appeal against the decision of Master B Mak given on 19 August 2019 refusing their application to set aside a default judgment and a charging order nisi, and to strike out the plaintiff’s claim against them.  The defendants’ previous application for leave to appeal was refused by the Judge on 25 August 2020[2].  

2.  Having considered the documents filed and lodged by the parties, we are of the view that it is appropriate to determine the present application on the papers without an oral hearing pursuant to Order 59, rule 2A(5)  of the Rules of the High Court, Cap. 4A.  We now give our judgment on the application.

B.  The facts

3.  The relevant facts of the case are not controversial and can be briefly stated.

B1.  HCA 180 of 2011 (HCA 180)

4.  The plaintiff is a solicitor practising as the sole proprietor of a law firm. 

5.  Between February 2011 and May 2015, pursuant to a letter of engagement dated 18 February 2011, the plaintiff represented, and rendered legal services to, the 1^st and 2^nd defendants in High Court Action no. 180 of 2011 (“HCA 180”).  Two counsel were engaged to act for the defendants.

6.  The action was settled between the parties on 25 February 2014, which was the first day of the trial. 

7.  In July 2015, The plaintiff delivered to the defendants a bill of costs no. 32604 dated 26 June 2015 (“the 1^st Bill”)  for his fees and disbursements in HCA 180 in the total sum of HK$1,008,691.  Among the items of disbursement included in the bill were the fees of the two counsel in the respective sums of HK$175,000 and HK$414,000. 

B2.  HCA 2702 of 2015 (HCA 2702)

8.  As the defendants did not settle the 1^st Bill, the plaintiff commenced HCA 2702 of 2015 (“HCA 2702”)  on 19 November 2015 to recover the amount claimed in the bill.   

9.  On 2 February 2016, upon the defendants’ application, Master K Lo granted leave to the defendants to tax the 1^st Bill and directed the plaintiff to file a revised bill for taxation in accordance with Practice Direction 14.2 and the defendants to file a list of objections.  

10.  The plaintiff filed a revised bill for taxation dated 1 March 2016.  The fees of the two counsel were listed respectively as items 117 and 120 (“the 2 Items”)  in the revised bill.  The defendants’ list of objections raised a number of preliminary arguments, of which arguments no. 4, 6 and 7 related to the 2 Items. 

11.  On 19 December 2016, Master Chow heard the preliminary arguments.  By her oral decision given on 22 December 2016, Master Chow followed the decision in Mong Man Wai v H H Lau & Co (a firm)[3] and ruled that, since the plaintiff had not yet paid the fees to counsel, the 2 Items were not disbursements and could not be claimed under the bill.  

12.  On 5 January 2018, the plaintiff paid to the two counsel their fees under the 2 Items. 

13.  At the substantive taxation hearing on 8 January 2018 before Master KW Wong, the plaintiff applied to reinstate the 2 items.  It was opposed by the defendants who were represented by counsel.  Master Wong refused the application, holding that the 2 Items had already been disposed of on the previous occasion and could not be “resurrected”.  At the same time, he expressed reservation about the defendants’ argument based on res judicata, and indicated that the plaintiff was not barred from issuing another bill of costs to seek payment of the 2 Items. 

14.  The taxation proceeded and the amount taxed had since been paid by the defendants.  After the taxation hearing, the plaintiff delivered to the defendants another bill of costs no. 34918 dated 8 January 2018 (“the 2^nd Bill”)  to seek payment of the counsel fees that had been paid. 

15.  On 21 February 2018, the plaintiff issued a summons to apply for leave to tax the 2^nd Bill.  Master KW Wong heard the application on 23 May 2018.  He refused the application on the ground that when HCA 2702 was commenced, the plaintiff had not yet paid the counsel fees; accordingly, the defendants’ liability to reimburse the plaintiff for the disbursement had not yet arisen.  He pointed out that the plaintiff would have to bring a fresh action to seek payment of the 2^nd Bill.  

B3.  DCCJ 5354 of 2018 (DCCJ 5354)

16.  In November 2018, the plaintiff commenced the action below (DCCJ 5354 of 2018, “DCCJ 5354”)  against the defendants to recover the amount of counsel fees covered by the 2 Items.

17.  Although the defendants had given notice of intention to defend the action, they did not serve any defence.  On 19 March 2019, the plaintiff entered default judgment against the defendants.  On 22 March 2019 the plaintiff obtained, by way of execution, a charging order nisi against the defendants.  

B4.  The defendant’s application

18.  By summons filed on 25 April 2019, the defendants applied to set aside the default judgment and the charging order nisi, and also to strike out the plaintiff’s writ and statement of claim. 

19.  On 18 August 2019, Master B Mak refused the applications and dismissed the defendants’ summons. 

C.  The Judge’s decision

20.  The defendants appealed the Master’s decision to a judge in the District Court.  They relied on three grounds, namely, (1)  the plaintiff was not entitled to deliver the 2^nd Bill (“one bill only argument”); (2)  even if the plaintiff was so entitled, he was estopped from suing on the 2^nd Bill (“estoppel argument”); and (3)  alternatively, the claim based on the 2^nd Bill was an abuse of the court process (“abuse of process argument”).

21.  By her decision handed down on 3 April 2020, the Judge dismissed the appeal and ordered costs the defendants to pay the plaintiff’s costs summarily assessed at HK$155,000.  The Judge’s principal reasons are as follows.

22.  On the one bill only argument, the Judge held that:  

(1)  The solicitor’s bill contemplated by section 67 of the Legal Practitioners Ordinance, Cap. 159 is a final bill, to be contrasted with a statement of account or intermediate bill: Chin Yuk Lun Francis v Messrs Lo & Lo (a firm)[4]; and Re Romer & Haslam[5]. The final bill should set out the solicitors’ complete account for the work rendered for the relevant period; once delivered, it is not expected to change and no further bill is anticipated which would change the amount charged (“One Bill principle”): Mong Man Wai v H H Lau & Co (a firm)[6]; Sadd v Griffin[7]; De Cotiis v Owen Bird[8].

(2)  A final bill, however, is not necessarily the last bill: Chin Yuk Lun Francis v Messrs Lo & Lo (a firm)[9]. The One Bill principle is not an absolute rule, and does not create an absolute bar against any alteration of a final bill even after taxation proceedings had commenced.  The court has power to allow alteration to a final bill: In re taxation of Costs, Re a Solicitor[10]; and Polak v Marchioness of Winchester[11].

(3)  The 1^st Bill is a final bill in respect of all the plaintiff’s work done in HCA 180.  Prima facie, the plaintiff is not entitled to alter it.  The 2^nd Bill, in seeking to add back the 2 Items, amounts, in substance, to an alteration of the 1^st Bill.

(4)  There are sufficient grounds to allow the alteration of the 1^st Bill by way of allowing the 2^nd Bill in that:

(a)  the defendants knew right from the delivery of the 1^st Bill that the plaintiff was seeking the payment of the 2 Items;

(b)  the defendants did have the benefit of counsel’s services in HCA 180;

(c)  the plaintiff has paid the counsel fees, which is a sizeable amount;

(d)  there is no suggestion of the plaintiff engaging in improper, dishonest or questionable conduct; and

(e)  disallowing the 2^nd Bill will create undue hardship to the plaintiff and unjustified windfall to the defendants.  This is uncalled for and does not accord with the rationale of the statutory scheme, which is to protect client against improper conduct of his solicitors, and not to enable the client to gain a pecuniary advantage at his solicitors’ expense due to the latter’s mistake that does not involve improper conduct. 

(5)  For the above reasons, the plaintiff’s claim is viable and is not liable to be struck out.  Further, the defendants failed to show that their intended defence (i.e. the 2^nd Bill should be disallowed)  enjoyed a real prospect of success such that the default judgment should be set aside.

(6)  With regard to the defendants’ arguments that the plaintiff ought not be allowed to submit the 2^nd Bill for taxation, it is accepted that, as a general proposition, a receiving party ought to include in his bill of costs all the items he intended to claim, and ought not to be allowed to submit further items after his bill is taxed and paid.  

(7)  However, there is no absolute bar to the issuance of a further bill after completion of taxation.  Whether to allow a further taxation must depend on the facts and circumstances of the case, and there is a distinction between a deliberate decision to omit the items and an accidental omission or slip: In the Estate of Segalov, Deceased[12] and Moat Housing Group-South Ltd v Harris & Anor (No 2)[13].

(8)  On the facts and circumstances of the present case (see (5)  above), there are sufficient grounds to allow taxation (if applied for)  of the 2^nd Bill.

23.  On the estoppel argument, the Judge held that:

(1)  Once a cause of action has been held to exist or not to exist, the same cause of action may not be challenged by either party in subsequent proceedings by reason of “cause of action estoppel”: Thoday v Thoday[14]; Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd[15]; and Spencer Bower and Handley: Res Judicata (5^th ed)  at [7.02]. 

(2)  The defendants’ reliance on cause of action estoppel in that:

(a)  The proceedings in HCA 2702 have been stayed save for the taxation proceedings.  After Master Wong had taxed the 1^st Bill, there was no order entering judgment for the plaintiff for the amount taxed, or judgment signed for the taxed amount.  There was thus no formal judgment entered or formal order made in respect of the cause of action in the action.  It is doubtful whether Master Chow’s ruling on the preliminary arguments is in itself capable of raising a cause of action estoppel.

(b)  The law of res judicata draws a distinction between an earlier judgment allowing the claim and one dismissing it.  The burden is on the defendants to show that the judgment relied on was obtained upon grounds or in circumstances which afford him a defence to the subsequent claim.  If the ground for determination in the earlier judgment had ceased to operate at the time of the subsequent litigation, no cause of action estoppel would arise: Total Lubricants HK Ltd v De Chanterac (No 2)[16]. Master Chow held that the 2 Items were not recoverable because they had not been paid, a ground that had ceased to exist and no longer applied in DCCJ 5354 since the plaintiff had subsequently paid the fees to counsel.  Master Chow’s ruling therefore did not raise a cause of action estoppel in respect of the 2 Items. 

(3)  The defendants’ reliance on issue estoppel failed because:

(a)  Issue estoppel applies to fundamental issues determined in earlier proceedings that formed the basis of the judgment: Spencer Bower at [8.01]. 

(b)  Master Chow decided that the 2 Items were not recoverable because they had not been paid by the plaintiff, which is not the same issue that falls to be decided in DCCJ 5354, namely, whether the 2 Items could be recovered from the defendants after they had been paid.  No issue estoppel can arise on Master Chow’s ruling.

(c)  As to Master Wong’s first ruling refusing the plaintiff’s application to reinstate the 2 Items in the 1^st Bill, it was made in the overall context of managing the taxation proceedings before him and was a procedural decision.  He did not rule that the plaintiff could never claim the 2 Items.  There is no common issue between that ruling and DCCJ 5354 for issue estoppel to arise.

(d)  As for Master Wong’s second ruling dismissing the plaintiff’s summons to tax the 2^nd Bill in HCA 2702, it was on the ground that the cause of action (i.e. the 2^nd Bill)  accrued after the date of the writ in the action.  The decision was based on a purely procedural ground that no longer applied when DCCJ 5354 was commenced.  An issue estoppel created by a dismissal is limited to the actual ground upon which the existence of the right was negatived: Spencer Bower at [2.28].  Accordingly, no issue estoppel arises out of Master Wong’s dismissal of the summons.

24.  On the abuse of process argument, the Judge rejected it for the reason that, having regard to the chronology of the case, this is not a case in which the plaintiff is making a claim in a later action which he could and should have raised in earlier proceedings but did not do so, and there was no misuse or abuse of the court’s process.  The plaintiff has a genuine claim and there is no reason why he should be shut out from pursuing it. In coming to this conclusion, the Judge had regard to the principles established in Henderson v Henderson[17]; Johnson v Gore-Wood & Co[18]; Chiang Lily v Secretary for Justice[19]; Ko Hon Yue v Chiu Pik Yuk[20]; and Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd[21].

D.  The renewed application for leave to appeal

25.  The defendants applied for leave to appeal the Judge’s decision.  By her decision dated 25 August 2020, the Judge refused the application with costs against the defendants summarily assessed at HK$70,000. 

26.  The defendants renewed their application to this Court by summons filed on 7 September 2020.  Six proposed grounds of appeal were put forward[22], which are identical to those raised in the leave application before the Judge. They may be summarized as follows (respectively “Ground 1” to “Ground 6”): 

(1)  The Judge erred in: (a)  holding that the court has power to allow the alteration of the 1^st Bill by the delivery of the 2^nd Bill and that the two bills together form the “final” bill; (b)  allowing the plaintiff to alter the 1^st Bill by the delivery of the 2^nd Bill when the plaintiff did not apply for, and was not given, leave to alter the 1^st Bill, and the taxation proceedings of the 1^st Bill were completed and the taxed amount had been paid in full; and (c)  holding that the plaintiff had made a bona fide mistake by omitting to pay the 2 Items when the 1^st Bill was issued.

(2)  The Judge erred in finding there are sufficient grounds to allow taxation (if applied for)  of the 2^nd Bill in that: (a)  there was no basis for holding that the plaintiff made a bona fide mistake in omitting to pay the 2 Items; and (b)  the decisions of Moat Housing Group-South Ltd v Harris & Anor (No 2) and In the Estate of Segalov, Deceased should apply.

(3)  The Judge erred in holding that the cause of action estoppel did not arise as there was no formal judgment entered or formal order made in respect of the cause of action in HCA 2702.

(4)  The Judge erred in holding that the ground underlying Master Chow’s ruling has ceased to exist and no longer applied to DCCJ 5354 such that the cause of action estopppel did not apply.

(5)  The Judge erred in holding that Master Wong’s first ruling refusing the plaintiff’s application to add back the 2 Items to the 1^st Bill was made in the overall context of managing the taxation proceedings and was a procedural decision.

(6)  The Judge erred in ordering the costs of the action be to the plaintiff.

E.  Our reasons for decision

27.  Under section 63A(2)  of the District Court Ordinance, Cap. 336, leave to appeal may be granted if the court is satisfied that the intended appeal enjoys a reasonable prospect of success or there is other reason in the interests of justice for the appeal to be heard. 

28.  It is important at the outset to put the defendants’ appeal before the Judge and the Judge’s decision in context.  The appeal before the Judge was from the Master’s decision dismissing the defendants’ applications to set aside the default judgment and the resulting charging order nisi, and to strike out the plaintiff’s claim.  To succeed in their applications and, in turn, their appeal, the defendants have to put forward grounds of defence that have a real prospect of success, and to demonstrate that the plaintiff’s claim is plainly and obviously unsustainable.  It is against these thresholds that the Judge considered and determined the three grounds advanced by the defendants (see [20] above).   

29.  For the reasons set out below, we are of the view that there are no merits in the defendants’ six proposed grounds of appeal. 

E1.  Ground 1

30.  On the Judge’s holding that the Court has jurisdiction to allow alteration of a bill that comes within section 67 of LPO, we are of the view that it is well supported by the cases discussed, and the analysis, made in [41] to [64] of the Judge’s judgment: Sadd v Griffin, In re taxation of Costs, In re a Solicitor and Polak v Marchioness of Winchester, as well as the case of Bilkus v Stockler Brunton (a firm)[23] referred to in the plaintiff’s skeleton submission.

31.  The defendants argued that, even if the Court has power to allow the withdrawal of a bill and the delivery of a fresh bill, leave of the court is required, but the plaintiff has not sought leave to amend or withdraw the 1^st Bill and the taxation proceedings were completed and the taxed amount paid in full.  Accordingly, the plaintiff should not be allowed to alter the 1^st Bill by the delivery of the 2^nd Bill which has the effect of adding back the 2 Items. 

32.  The Judge considered this argument has no reasonable prospect of success because the “one bill” principle is not an absolute rule and on the materials before the court, and it is at least arguable that there are sufficient grounds on which the court ought to allow the delivery of the 2^nd Bill. This being the case, the defendants failed to satisfy the threshold for striking out the plaintiff’s claim.  The Judge was also not satisfied, on the available materials, that the defendants had a real prospect of success in demonstrating that the 2^nd Bill ought to be disallowed, and their application to set aside the default judgment therefore failed.  The Judge concluded that as the default judgment stands, there is no need for the plaintiff to seek leave to amend the 1^st Bill, whether in DCCJ 5354 or otherwise.  It follows that the plaintiff has not sought, and does not have, leave to alter the 1^st Bill has no bearing on the outcome of the defendants’ striking out and setting aside applications.

33.  We are in agreement with the Judge’s above reasoning and would similarly reject the argument.

34.  The defendants also argued that the 1^st and 2^nd Bills could not together form the final bill.  Reliance was placed on the “natural break in litigation” principle discussed in Chin Yuk Lun Francis v Messrs Lo & Lo (a firm)[24].  However, the discussions were set in a different context.  In that case, the solicitor had over a period of time rendered a number of bills, and the issue was whether the bills in issue were separate bills or part of a series of bills.  It is in that context that the Court stated in [10] of the judgment:

“A retainer is normally an entire contract under which a solicitor is to do certain work for his client. In the absence of a contrary agreement, the solicitor is not entitled to be paid until the work has been completed or the retainer has been terminated. Thus, in a litigation which extends over a considerable period of time, the burden of financing the client’s litigation falls upon the solicitor. To mitigate this harshness, the principle of natural break was evolved under which the solicitor becomes entitled to bill his client when a natural break occurs in the course of protracted proceedings even though the matter for which he was retained has not been brought to a conclusion. Thus the question arises whether a number of bills issued in respect of a litigation are separate bills or whether they are a series of bills which together form one bill. If they are separate bills, the client has to demand taxation within a month of delivery of each of the bills on him. If they are a series which together formed one bill, his right to demand taxation on all the bills in the series is preserved as long as he demands taxation within a month of delivery of the final account, i.e. the last bill of the series. Or, if he demands taxation within twelve months of delivery of the final account, the court may, in the exercise of its discretion, order taxation subject to terms. This concept of treating a series of bills as a single bill was evolved for the purpose of overcoming statutory time-bars for taxation. In course of time, another practice has also developed under which the solicitor’s right to demand interim payment is written into the retainer. Thus, the approach nowadays is to look first at the retainer to see if the solicitor has the contractual right under the retainer to issue separate bills prior to conclusion of the matter for which he was retained. If he has no, he may only issue final bills at natural breaks in the matter.”

35.  The context in which the issue of “final bill” arose in the present case is rather different.  The defendants’ reference to the “natural break in the litigation” principle discussed in that case does not assist their argument that the 1^st and 2^nd Bills could not together form the final bill or that the plaintiff could not include the 2 Items in the 2^nd Bill after the taxation of the 1^st Bill was completed and the taxed amount paid for.  The defendants have not shown an arguable basis for challenging the Judge’s reasoning and rejection of their arguments on “final bill”[25].

36.  The defendants further argued that the Judge was wrong to regard the plaintiff had made a bona fide mistake by inadvertence in omitting to pay the 2 Items before delivering the 1^st Bill.  They referred to [62] of the judgment.  However, in that paragraph the Judge was only setting out the legal proposition to be drawn from the cases cited by the plaintiff.  The Judge’s finding on the point is at [68], which is that there is no suggestion that the plaintiff had engaged in any improper, dishonest or questionable conduct.  It is also the defendants’ argument that the plaintiff chose not to pay counsel fees before delivering the 1^st Bill, and had instead deployed the money held on account to pay the settlement sum.  We are unable to see how this will undermine the Judge’s finding. 

37.  For the above reasons, Ground 1 has no reasonable prospect of success.

E2.  Ground 2

38.  The first limb of Ground 2 repeats the criticism of the Judge’s finding that the plaintiff made a bona fide mistake by omitting to pay the 2 Items before delivering the 1^st Bill.  We have in [36] above pointed out that there is no proper basis to support the criticism.

39.  The second limb argues that in law, after a bill has been taxed, the receiving party cannot issue a further bill of costs, relying on In the Estate of Segalov, Deceased which was applied in Moat Housing Group-South Ltd v Harris & Anor (No. 2).  It was also argued that although these two cases concern party-and-party taxation, they are applicable to the present case which concerns solicitors and own client taxation since solicitors and own client taxation is more stringent. 

40.  At [76] to [81] of the judgment, the Judge accepted that as a general rule, a receiving party ought to include all the items he intends to claim in his bill of costs and is not allowed to submit further items after his bill is taxed and paid.  The Judge however did not accept that there is an absolute bar to the issuance of a further bill after taxation is completed and considered that whether to allow a further taxation must depend on the facts of the case. The Judge went on to analyze In the Estate of Segalov, Deceased and Moat Housing Group-South Ltd v Harris & Anor (No. 2) to illustrate the above legal principles. 

41.  As the Judge held in the decision refusing leave to appeal[26], the defendants merely repeated the arguments raised at the appeal before the Judge, but had not shown any error in the Judge’s reasoning and conclusion that whether to allow a further bill and further taxation must depend on the circumstances of the case in question.  We agree with the Judge that this proposed ground of appeal has no reasonable prospect of success.

E3.  Ground 3

42.  Ground 3 is directed at [89], [91] and [93] of the judgment which pointed out that there was, strictly speaking, no formal judgment or formal order made in respect of the cause of action in HCA 2702, and it is doubtful whether Master Chow’s ruling on the preliminary arguments by itself is capable of raising a cause of action estoppel.  In support of this proposed ground of appeal, the defendants argued that there was a formal order in that the 1^st Bill had been taxed and an allocator had been issued.

43.  In the decision refusing leave to appeal[27], the Judge made the point that this ground is factually incorrect in that she only expressed doubt whether the fact that no formal judgment was entered or no formal order was made in respect of the cause of action in HCA 2702 would preclude the cause of action estoppel from arising.  It was further pointed out that in the end the Judge did not find it necessary to resolve the doubt because even if the doubt was resolved in the defendants’ favour, the cause of action estoppel still failed due to the second difficulty.

44.  In any event, the defendants’ argument has missed the point.  While it is correct that the 1^st Bill had been taxed by Master Wong and the allocator had been issued, this is not the same as a formal judgment or formal order on the claim in HCA 2702.  As the Judge pointed out in her judgment[28], in the normal course the taxing master would, after taxation was completed, make an order certifying the amount due from the paying party in respect of the bill. However, in HCA 2702 no judgment has been signed for the taxed amount; the proceedings have in fact remained stayed.  It is against such circumstances that the Judge queried whether there was sufficient basis to support a cause of action estoppel.

45.  Accordingly, Ground 3 has no merits.  

E4.  Ground 4

46.  Ground 4 seeks to challenge the Judge’s holding that the cause of action estoppel cannot arise from Master Chow’s ruling because the ground for the ruling has ceased to exist with the plaintiff’s subsequent settlement of the counsel fees.  The defendants argued that this is not the ground underlying Master Chow’s ruling; instead the ground should be that the 2 Items had not been paid before the delivery of the 1^st Bill, and this ground remains in existence notwithstanding the counsel fees were later paid.

47.  In our view, the defendants’ argument is misplaced.  In DCCJ 5354, the issue is whether the plaintiff could deliver the 2^nd Bill and bring the action to recover the 2 Items after he had paid them.  This is different from the issue that Master Chow was asked to rule on, namely, whether the plaintiff, not having paid counsel, could include the 2 Items in the 1^st Bill and seek payment of them in taxation.  Master Chow ruled against the plaintiff for the reason that the plaintiff had not paid the 2 Items before the 1^st Bill was delivered.  As far as DCCJ 5354 is concerned, this ground no longer applies and has no relevance to the issue between the parties.  Applying Total Lubricants HK Ltd v De Chanterac (No 2)[29], Master Chow’s ruling does not create a cause of action estoppel to bar the plaintiff from bringing DCCJ 5354.

48.  Ground 4 therefore has no merits.   

E5.  Ground 5  

49.  Ground 5 seeks to challenge the Judge’s holding that Master Wong’s ruling disallowing the 2 Items to be added back to the 1^st Bill for taxation in HCA 2702 was a procedural decision made in the overall context of managing the taxation proceedings before him. 

50.  In the written statement, the defendants merely repeated the ground of appeal without advancing any arguments to support it.  They had likewise made no elaboration on this ground in their application to the Judge for leave to appeal[30]. Given that the defendants have failed to explain in what way the Judge’s holding was erroneous, Ground 5 is bound to fail.

E6.  Ground 6

51.  Similarly, the defendants did not put forward any arguments in support of Ground 6 which relates to the Judge’s costs order.  This ground is bound to fail.  In any event, since the defendants failed in their appeal, the costs order of the Judge cannot be faulted.

F.  Disposition and costs

52.  For the reasons set out above, we refuse to give leave to the defendants to appeal the Judge’s decision.  The summons is accordingly dismissed.

53.  Applying the usual rule of costs follow the event, we also order the defendants to pay the plaintiff the costs of this application to be assessed summarily.  We are also of the view that this application ought not to have been made since the intended appeal is wholly devoid of merits, and the defendants should be visited with an indemnity costs order.  Having considered the plaintiff’s statement of costs for summary assessment.  We take the view that the items listed and the amount claimed are reasonable even on party-and-party basis.  We allow the amount in full and summarily assess the plaintiff’s costs at HK$40,640. 

54.  As this application is without merit, pursuant to Order 59, rule 2A(8), we further order that no party may under rule 2A(7)  request the determination to be reconsidered at an oral hearing inter partes.