FAIRVIEW PARK PROPERTY MANAGEMENT LTD. v. SUN WAI CHUN

CACV 271/98 and 61/99

HEADNOTE

Buildings Legislation - unauthorised alterations - removal and reinstatement - construction of Deed of Mutual Covenant.

Application for judge to recuse himself - claims of bias, no fair trial, denial of opportunity to present defence, and justice not seen to be done.

Gross sum costs orders - O62 r9(4) - exercise of judge's discretion.

CACV 271/98 and 61/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 271 OF 1998 AND 61 OF 1999 (CONSOLIDATED)

(ON APPEAL FROM HCA 5782 OF 1994)

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J U D G M E N T

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Nazareth V-P:

1. This appeal is concerned with certain alterations made to House 43 ("the House") First Street, Section G of Fairview Park. Fairview Park is a very large development in Yuen Long, consisting of some 5,000 houses built in the mid-1970s. A Deed of Mutual Covenant ("the DMC") was entered into between the development company, the management company ("the plaintiff") and the first owner and subscribed to by the other owners. The defendant is the present owner of the House. It was first sold in 1976 by the developer, Canadian Overseas Development Co Ltd, to one Lam Wai King, who sold the House to Christina Ma Kit Yi in 1987. In 1990, the defendant acquired the House from Christina Ma. Unlawful alterations had been made to the House in 1987 probably on the instructions of Christina Ma, and thereafter the plaintiff had sought without success to have the House reinstated. Ultimately it instituted the action in the High Court that has led to this appeal.

2. Different types of houses were built in Fairview Park. The House is what was known as House Type 5/2. This consisted of one half of a building divided into two houses and separated by a party wall. The House consisted of two floors with the ground floor comprising the entrance through an open arch into a porch, thence by way of the main door of the House which opens into the living and dining room, with the kitchen being separated by a wall which faced the main entrance door. The open porch was formed by two arched openings at right angles to each other and two walls, namely W11a and W11b. These two walls had been knocked down and the open porch area enclosed by erecting two external walls (walls W12a and W12b), and the new main entrance door was set into wall W12b. A third wall which was knocked down was the kitchen wall, W7. The plaintiff's complaint was that there were altogether five unauthorised and wrongful alterations to the House, namely (i) the removal of wall W11a; (ii) the removal of wall W11b; (iii) the removal of wall W7; (iv) the erection of wall W12a; and (v) the erection of wall W12b.

The DMC

3. The relevant provisions of the DMC were set out by the judge in the following helpful way:

"(1) Clause 5 which provides that each Owner (which by definition under Clause l(d) includes the Defendant) shall be bound and shall observe and perform the covenants and provisions and restrictions set out in the Second Schedule

(2) The Second Schedule provides as follows:

Paragraph 4(b)

'Not to make any alterations or additions to the exterior of any Unit or any building or to any walls and fences without the approval in writing of the Company [i.e. the developer].'

Paragraph 7(a)

'Not to make any structural alterations to the Unit or sub-section or any part thereof nor to cut, maim, damage, interfere with any common plumbing, wiring equipment apparatus and services.'

Paragraph 15

'To observe and perform all the covenants conditions and provisions of this Deed and the Estate Rules.'

(3) Clause 7(a) provides the Plaintiff Manager is to manage and provide services to Fairview Park and the Manager shall be responsible and shall have the full and unrestricted authority to do all such acts and things as may be necessary or requisite for or in connection with Fairview Park and any of the buildings thereon and the management thereof. The Clause further provides that the Manager shall have the powers and obligations set out in the Third Schedule.

(4) Clause 7(d) provides that it is lawful for the Manager at all times and from time to time to make revoke and amend such Estate Rules as it shall think fit for the management of the said Land etc.

(5) The Third Schedule provides as follows:

Paragraph 1(d)

'The Manager shall have the ... power ... to remove any structure or installation ... which is illegal unauthorised or which contravenes the terms of these presents ...'

Paragraph 1(h)

'The Manager shall have the ... power ... to make vary or annul any Estate Rules and any rules relating to the use of the open yards, gardens, lawns, parks, grounds, artificial lakes, bunds and rivers (if any) within the said Land and the estate roads.'

Paragraph 2(d)

'To take such steps as may be necessary to enforce the terms of these presents and the Estate Rules.'"

The Estate Rules

4. The relevant provisions of the Estate Rules made under the DMC were described by the judge as follows:

"Rule A10

'... An owner means each person in whom for the time being the legal estate in a unit is vested., successors in title are liable for any obligation under the Deed of Mutual Covenant left undone by their predecessors in title ...'

Rule B4(b) and (h)

'No owner is allowed:

(b) to alter the main structure, e.g. columns, beams, structural walls and etc. of any unit;

...

(h) to alter or to seal up any doorways or window openings ...'

Rule B6

'In existence at present are quite a number of unauthorised additions/alterations: the commonest being fixed type canopies. Upon discovery, owners are notified in writing and are given ample time to redress the breach. The Estate Management prones to persuasion rather than immediately resorting to legal proceedings.

Should persuasion fail, legal proceedings will be initiated in order of priority according to date of discovery and nature of breach. All unauthorised additions/alterations sooner or later have to be removed or rectified by owners themselves as the final solution, either forcibly (by Court Orders) or voluntarily (through persuasion and understanding.) Please don't follow suit other owners' breach. Prior consultation can alleviate future inconvenience."

Action taken by plaintiff

5. The plaintiff's staff discovered the unauthorised alterations on 7 June 1987. They took photographs and by letter dated 2 July 1987 wrote to Madam Lam Wai King, whom they thought to be the then owner of the House, about the unauthorised alterations, asking for reinstatement. The letter did not produce any results. They wrote again on 25 September 1987, this time addressing the letter to Christina Ma, the then owner. This likewise did not produce any result and a warning letter dated 22 July 1988 indicating that legal action would ultimately be taken was sent to Christina Ma. On 6 October 1990 she attended at the office of the plaintiff, when she agreed to the reinstatement of the House, promising to seek the assistance of her family and to inform the plaintiff's office in 10 days. It subsequently transpired that she did not carry out the work but instead sold the House to the defendant, Madam Sun. The plaintiff wrote again on 1 November 1990 seeking reinstatement and setting out the unauthorised alterations. Further letters were sent, addressed to Christina Ma and the defendant. By a letter dated 30 April 1993 the defendant wrote to the plaintiff's staff acknowledging the necessity to carry out reinstatement works and asking for a further extension until 30 September to carry out the works. On 21 June 1993, the defendant attended at the office of the plaintiff to register her change of ownership and promised the plaintiff's staff that she would rectify all the breaches by 30 September 1993. This was the third request by the defendant for time to reinstate. Ultimately on 25 September 1993 the plaintiff commenced the action in the District Court, which was transferred to the High Court on 24 May 1994.

The judge's decision

6. Waung J, before whom the matter came, found for the plaintiff and granted a mandatory injunction to take effect 35 days from the handing down of his judgment:

"that in the absence of the Defendant having restored the aforesaid five alterations, namely walls W7, W11a, W11b, W12a and W12b to the satisfaction of the Plaintiff, the Defendant whether by [her] servants [or] agents be restrained from hindering or preventing the Plaintiff, its servants, agents, contractors or workmen from entering into the House and from carrying out the reinstatement works of W7, W11a, W11b, W12a and W12b".

He also ordered that the defendant indemnify the plaintiff the costs and expenses of carrying out the aforesaid reinstatement works. He awarded the plaintiff the costs of the action and assessed them by way of gross sum assessment under O62 r9(4)(b) at $1,600,000. That sum was in addition to the gross sum of $133,000, assessed by him earlier after dealing with two interlocutory applications, one for him to disqualify himself as the trial judge, and the other an application made by the plaintiff for inspection of three affirmations filed in relation to the defendant's solicitors' application to cease to act.

7. The defendant now appeals to this Court first in CACV 271 of 1998 against the decisions of Waung J in the two interlocutory applications and against the relevant costs order in the sum of $133,000; and second in CACV 61 of 1999 against Waung J's final judgment and the further costs order for $1,600,000.

Consolidated grounds of appeal

Grounds 1 and 2

8. These were framed in the following way:

"(1) The Learned Judge erred in failing and refusing to deal with the issue of whether the said House was illegally built; whether the said House was an exempted building within the meaning of the Building Ordinance when such issues were raised by the Amended Rejoinder of the Defendant and that there was evidence placed before the Learned Judge in this respect.

(2) In granting the mandatory injunction, the Learned Judge erred in failing to consider or at all whether the performance of the same was legally possible or not and ground 1 hereof is repeated."

Illegality of the House

9. The first question that falls to be considered here is whether the judge was right in refusing to allow the defendant's counsel below, Mr Hubert Woo, to raise the matter of the illegality of the House. The question turns upon whether the defendant had pleaded the point. Mr Simon Yip (who represented the defendant on the appeal) does not suggest that it was pleaded directly or indirectly. What he says is that the broad denial made in the form of a traverse in the words "In the premises, it is denied that the plaintiff is entitled to the relief as claimed or any claim" sufficiently raised the issue. It has to be said, as already indicated, that nothing earlier averred in the re-amended defence even remotely discloses the point. Reliance was also placed upon paragraphs 1C(a)-(c) of the plaintiff's re-re-amended reply and the first, second and third supplemental statements of Choy Bing-wing put in by the defendant as sufficiently introducing the issue of whether the House was an exempted building under the Buildings Ordinance (Application to the New Territories) Ordinance (now Cap. 121, but then Cap. 322). I cannot accept that submission. Issues, a fortiori fundamental issues, cannot be allowed to be slipped in in such an oblique, obscure fashion. Although the matter of exempted buildings is touched on in the latter provisions of the plaintiff's re-re-amended reply, the matter of illegality is not; nor was it taken up by the plaintiff in seeking to make good its averment. I also reject the suggestion that the broad denial put the plaintiff to strict proof that the House was not an illegal building in the way now contended on behalf of the defendant. The judge, in my view, was right in refusing to allow Mr Woo to raise the matter, a fortiori in the face of the objections made by the plaintiff's counsel, Mr Lam.

10. Turning to the other limb of the submission, it is, rather boldly, submitted that the judge was wrong to refuse leave. The judge had repeatedly mentioned his view that the matter could not be raised without amendment of the pleaded defence, indeed inquiring whether Mr Woo proposed to apply for an amendment; Mr Woo declined to do so more than once. He only made his application very late, after all the factual witnesses had given their evidence. The judge cannot be faulted in the exercise of his discretion to refuse at that stage. This submission, too, must be rejected.

Whether construction of House was illegal

11. Nonetheless, I propose to address Mr Yip's submission that the construction of the House was illegal, as being in breach of s.14 of the Buildings Ordinance (Cap. 123), which had required the Building Authority's approval and consent before the House could be built. Such approval and consent was said not to have been obtained. What the submission is intended to lead up to is that if the construction of the House was illegal, then the defendant could not lawfully be required to effect alterations or reinstatement, which by definition would also be illegal. The submission runs thus. The combined effect of s.3 of Cap. 322 and reg. 3(2)(a) and (b), in the particular circumstances here, means that the House would be subject to s.14 of the Buildings Ordinance if it had "a roofed-over area" which exceeded 1,000 sq.ft. Whether or not the roofed-over area did exceed 1,000 sq.ft. is by no means clear, but even if that exercise could properly be undertaken in this Court, it does not seem to me to be necessary. Whether or not the roofed-over area exceeded 1,000 sq.ft., approval and consent for the construction of the House had had to be obtained - from the Building Authority pursuant to s.14 of the Buildings Ordinance if the roofed-over area exceeded 1,000 sq.ft., or from the Secretary for the New Territories if the roofed-over area did not exceed 1,000 sq.ft. That is because under the New Grant no building could be erected on the lot except with the prior consent in writing of the Secretary for the New Territories and in conformity with the conditions imposed by him. The Secretary required all building structural site formation and drainage plans to be forwarded to the Buildings Office which was appointed the delegated authority. It appears that the authority did thus receive and approve building plans and that acceptable evidence of them is available even if not the original plans. Thus, even if the approval and consent had had to be obtained from the Building Authority (on the footing that the roofed-over area exceeded 1,000 sq.ft.), the Buildings Office proceeded to approve the plans and give its consent to the construction of the House as if it had been the Building Authority acting under the Buildings Ordinance.

12. However all of that may be, it seems to me that the evidence that the five walls were unauthorised alterations is overwhelming. It has never been suggested in the past that they were anything else; on the contrary both the defendant and her predecessor-in-title accepted that they were and asked for time to effect reinstatement. It is also significant here that what the defendant appeals, and what is sought to be justified by the plaintiff, is the order of the judge that if the defendant does not herself carry out the reinstatement works, that she should permit and not obstruct the plaintiff carrying them out. And this I am in any case satisfied that the judge was entitled to order subject to one reservation. This is that the reinstatement works themselves do appear to require approval under one or other of the statutory regimes. It seems to me if an order can be carried out in two ways, only one of which conforms to the requirements of the law, it is to be construed to accord with the latter. The position could, in my view, be clarified by this Court indicating that the plaintiff should first procure the approval under whichever of the competing regimes is deemed applicable.

Ground 3

13. This was that

"the Learned Judge erred in failing to consider that firstly according to the Plaintiff's evidence, the Plaintiff back in 1987 [had] already discovered or [was] otherwise aware of works in the course of being carried out in respect of the removal, erection or alteration of the suit walls by the Defendant's predecessor, and secondly that the Plaintiff [had] failed to take any steps in stopping or protesting the said works when they were being carried out in 1987, and thirdly, in the circumstances, the Plaintiff ought to have waived or been estopped from claiming against the Defendant by the present action." (sic)

14. Mr Yip made it clear that the defendant's point here was that the plaintiff discovered the "works" it complains about in June 1987; that accordingly the plaintiff could have commenced proceeding in respect of the works but nevertheless failed to do so and that this is a relevant factor against the granting of the injunction that the judge ordered. He very rightly did not press this point. There is very clear and compelling evidence of continuous action by the plaintiff and of corresponding prevarication by the defendant and her predecessor-in-tile. At no stage did the plaintiff give any indication that it would not press for reinstatement. There is nothing in this ground.

Ground 4

15. This in effect was that the DMC simply prohibited the actual erection of walls, not their toleration or retention by an owner a fortiori by a successor-in-title who did not carry out the works herself.

16. Mr Yip recognised that this ground overlapped or was entwined with grounds 1 and 2; he addressed them together. It seems to me that the answers to grounds 1 and 2, i.e. that the judge was entitled to restrain the defendant from impeding the plaintiff in carrying reinstatement works is a sufficient answer to ground 4 also. Insofar as submissions below and before us seemed to be attacking an order directly requiring the defendant to carry out the works, they were or can now be seen to be misconceived given the negative way in which the judge expressed his order. The actual complaint is that the judge did not address the point in his judgment. The answer to this must be, in addition, that it was not pleaded

Ground 5

17. The complaint here seems to be that the judge was wrong both in his conclusion and in the way he reached his conclusion that there was a change of plot ratio, which it is submitted, could not properly be calculated without the approved plans. It may be that the judge was also wrong in concluding that there was a real, as opposed to a fanciful, risk that the Government would in the overall circumstances have taken enforcement action. But however those matters may be, I cannot see that they could have any decisive or significant effect upon the judge's ultimate conclusion in making the order that he did. Whether the alterations resulted in an additional area which wrongfully increased the plot ratio, has little, if anything, to do with whether the five walls were unlawful alterations in respect of which the plaintiff is entitled to carry out reinstatement works (presumably with the requisite authority) and recover the costs from the defendant.

Ground 6

18. This makes a number of complaints against the judge. Mr Yip has grouped them under four heads, i.e. that there was a real danger of bias on the part of the judge, that the defendant did not receive a fair trial, that she was prevented from presenting her defence, and that justice was not seen to be done.

Background: Mr Bing Choy's role

19. Mr Bing Choy is an authorised person under the Buildings Ordinance and a registered structural engineer. In 1991 the Buildings Ordinance Office and Lands Department took action in relation to building works effected by individual owners in their respective premises in Fairview Park. They were advised to engage an authorised person or registered structural engineer to assess the structural stability of their premises. Some of them engaged Mr Choy for that purpose. He thus came to be retained by the defendant. He asked the Buildings Office for sight of the plans of the House. They informed him that there was no record of such plans under the Buildings Ordinance, but their records of building/structural plans required under the lease conditions were available. Mr Choy took the view, presumably on the basis that the House was not an excepted building, that plans under the Buildings Ordinance were essential. He proceeded upon that basis.

20. Mr Ronny Wong SC, for the plaintiff, submits, it seems to me from the documentary evidence exhibited, with ample justification, that Mr Choy then started to issue various "safety certificates" on the basis of his visual inspection and without any reference to plans which the Buildings Office had accepted. He addressed the matter from the point of view of structural safety and did not have regard to the plans accepted by the Buildings Department. He wrongly equated the lack of distress caused by the alterations with the absence of structural alteration and with compliance with the DMC and the estate rules. He then financed and led the defendant through the present proceedings as a test case to vindicate his stance.

21. The judge became aware of the matter in the following way. The trial commenced on 2 November and with gaps ended on 16 November 1998. Prior to that on 16 October the defendant's solicitors, in the person of Miss Chung, and Mr Choy appeared before the judge upon an application by the former to cease to act. Mr Choy appeared as a representative of the defendant. Three affirmations were filed, two by Miss Chung and one by Mr Choy. These revealed Mr Choy's involvement as an "expert" and also his control and financing of the defendant's case. The solicitor's application to cease to act was withdrawn at the hearing upon Mr Choy agreeing to immediately pay a sum to the defendant's solicitors.

22. Reverting to the trial, all the factual witnesses for both sides had given their evidence by the fifth day of the trial, i.e. 6 November 1998. The defendant filed four factual statements made by Mr Choy and one expert report signed by Mr Choy. On the previous day, the defendant gave evidence which revealed that Mr Choy had been running the whole case for her from the very beginning in 1993 and that she had neither paid Mr Choy nor the defendant's solicitors any money for the proceedings; and moreover, that she knew virtually nothing about the latter. The judge had become increasingly concerned about Mr Choy not only being the defendant's sole factual witness, but also her sole expert witness, and particularly about his independent status. He agonised about the matter, and on 6 November indicated to the parties that there had been an earlier application by the defendant's solicitors to cease to act and that the material filed in that matter might be relevant to the consideration about to be given to the matter of Mr Choy also giving evidence as an independent expert. Counsel for the plaintiff then applied to inspect the material. Mr Woo resisted that application, suggesting that the judge was biased because of his reference to the 16 October material, and should therefore withdraw from the trial. It should be mentioned that earlier the judge had refused the defendant leave to amend her rejoinder to plead illegality of the House; it was after this that discussion ensued on the matter of Mr Choy giving expert evidence. There was then an outburst from Mr Choy which led to Mr Woo making an application to the judge to disqualify himself. The judge gave directions for the hearing of the plaintiff's summons for the inspection of the 16 October affirmations, and the matter was adjourned to 11 November 1998. On that day Mr Woo sought an adjournment of the motion which was opposed by Mr Lam for the plaintiff. The judge for reasons given later refused to disqualify himself and then proceeded to hear the plaintiff's summons for inspection. At the commencement of the afternoon hearing Mr Woo informed the court that the defendant wished to appeal the court's refusal to adjourn the defendant's motion, that the defendant was withdrawing her instructions from her solicitors and counsel and that the latter without instructions could no longer act and were withdrawing. Mr Woo then withdrew but Miss Chung remained in court pending the filing of a notice of intention to act in person by the defendant or an order of the court allowing the defendant's solicitors to cease to act. The defendant who was to attend for the purpose did not turn up and after awaiting her attendance until 6 pm, the court adjourned to the following morning. Again, the defendant did not attend nor was there any sign of a notice of intention to act in person, which it had been indicated would be presented. The defendant's solicitors accordingly remained as solicitors on the record. Instead of the notice of intention to act in person, Miss Chung had received a 3-page fax in Chinese stating that the defendant was terminating her instructions to the solicitors. The trial then resumed with the plaintiff's two experts giving evidence. Miss Chung remained in court but did not participate in the trial although it was made clear she was at liberty to do so. The final submission was then concluded and judgment was reserved. That then in substance was the background to ground 6 and I return to Mr Yip's submissions.

Defendant's specific submissions

23. Mr Yip relied on a number of specific matters in support of his four main complaints, i.e. bias, no fair trial, denial of an opportunity to present the defence, and that justice was not seen to be done. It is helpful to address the specific matters first since many of them go to more than one of his main four complaints.

24. Mr Yip submits that a person may be both a factual and an expert witness, and that if, particularly in the latter context, he has some interest in the proceedings and is not truly independent, that does not disqualify him as a witness, but it is a matter to be taken into consideration by the court in assessing his credibility. He relies upon authority for those propositions. I do not find it necessary to canvass those authorities in this already overlong judgment. I am content to assume that they are correct. There is also authority concerned with the independence of expert witnesses and the judge referred to one. However that may be, it must be rare indeed that a court is presented with an expert witness for one of the parties, who is (a) the only expert witness to be called for that party, (b) has so major an interest in the proceedings, and (c) has had complete control of that party's case. Moreover, not only were the plaintiff's legal advisers unaware of Mr Choy's interest, but apparently so was the defendant's counsel. The judge was entirely right to be concerned about such "independent" expert evidence which would obviously be unlikely to be of much assistance to him in resolving the issues between the parties. If he were to disqualify himself, any other judge would be in no less a difficulty. Moreover, he was aware of the nature of Mr Choy's interest, and it is difficult to see how he could continue with the hearing without apprising counsel of his knowledge. Not every judge may have dealt with the matter in precisely the same way, but it does not seem to me that the judge is to be criticised for dealing with the prospect of Mr Choy's expert evidence in the way he did.

25. It was also complained that the judge dictated the evidence of the defence throughout the trial besides making personal and sarcastic remarks on the defence case and the defendant's counsel. Mr Yip helpfully took us to some of the passages of the transcript upon which he particularly relied and also provided us with a written schedule of numerous remarks and observations of the judge also relied upon. The complaint can only be resolved by taking a view of the effect of all of those in the overall context of the case. I have carefully done so, and it is convenient to state here that they certainly do not in my view go quite as far as would be necessary to provide the requisite support that Mr Yip seeks from them and relies upon (notwithstanding that the remarks complained of might have gone further, occurred more frequently, and been expressed in language stronger than was prudent). The judge plainly took a strong view of Mr Choy's conduct. It seems to me that he was entitled to do so. I am unable to accept the complaint that the judge dictated the evidence of the defence or that his remarks or observations prevented the defence from being presented and conducted properly. Indeed, at the end of the day, I am unable to identify any aspect of the defence that, because of those reasons, was not adequately presented. It is also said that the judge was wrong in continuing the proceedings in the absence of the defendant when it was made known that she was ill and could not attend. This can be disposed of quite shortly. It was perfectly clear that the defendant wished to obtain an adjournment. It cannot have been other than the judge's duty to be reasonably sure that an adjournment was justified before the protracted and long delayed proceedings were further adjourned, with the inevitable additional wasted costs, inconvenience to the plaintiff's expert witnesses who had been waiting and other undesirable consequences of adjournment. In the circumstances appropriately compelling medical evidence would have been required. The defendant had taken the extreme step of withdrawing instructions from her legal advisers in an apparent attempt to force an adjournment. It was said the defendant would turn up but then it was suggested that she could not do so, fortuitously because of some alleged minor accident or indisposition while using the Mass Transit Railway. The judge was not presented with a medical certificate or other convincing evidence. In my judgment, he was quite right in refusing to allow the courts to be manipulated in the way plainly attempted.

26. It is also said that the judge was wrong in compelling the defendant's former solicitor to continue to attend after the defendant had withdrawn her instructions, moreover, while the defendant was absent and while neither took any further part in the conduct of her case. For the like reasons as those for which I have rejected the previous complaint, I reject this also. I cannot see what prejudice the defendant suffered; moreover, plainly she brought those matters upon herself.

27. I turn then to Mr Yip's four main submissions. On the first matter i.e. bias, the specific matters I have addressed do not support the submission. It is said also that the revelation of the contents of the 16 October affirmations coupled with the judge's invitation to the plaintiff to apply for their inspection, taken with his claimed error in ignoring the privileged and confidential nature of the affirmations as recognised in Re Creehouse Ltd [1983]1 WLR 77, clearly reveal a real risk of bias on the part of the judge. I do not agree. There were here the very special circumstances which I have already mentioned, that were absent in Creehouse. As to privilege, I am not able to accept that the affirmations were privileged given that they were put before the court. The mere fact that the judge held against the defendant on all these matters, does not mean that he was biased or indeed there was a real risk of bias. Apart from these matters, the submission that there was a real risk of bias in essence rests upon the specific complaints I have already addressed and rejected. In my view, there was no real danger of bias on the part of the judge or of a fair trial not being possible (see Nattrass v Attorney General [1996]1 HKC 480). The judge's concern about Mr Choy's evidence and the defendant's tactics fully justified the judge's scepticism and his firm control of the proceedings.

28. Moving on to main grounds 2 and 3, i.e. that there was no fair trial and that the defendant was prevented from presenting her defence, here also from what I have already said, it can be seen that the factual foundation relied upon has simply not been made out. In particular, as I have said, I am not persuaded that the defendant was prevented from presenting her defence. To say that Mr Woo was prevented from presenting his submissions on the illegality point seems to me to be a travesty of what took place. It was Mr Woo who declined to apply for leave to make the amendment that would have entitled him to present the submissions on illegality; and that enabled Mr Lam on behalf of the plaintiff to successfully continue to object to the illegality as not having been pleaded. Had the matter been rectified by amendment, the submission might have had some force. Nor am I persuaded that there are any other good grounds for holding that the trial was unfair or that the defendant was unable to present her case. Merely because a judge might reject the case and indeed virtually all the points made by one party or that he might indicate his scepticism from the outset, is not necessarily a ground for holding that he is biased or denying the party concerned a fair trial. On the contrary, a judge is right in indicating his doubts early enough to enable a party to meet them.

29. Finally I come to Mr Yip's fourth main submission, that justice was not seen to be done. This is in substance the same as the first complaint. For the reasons already given, I reject this also.

Ground 7

30. The judge made gross sum costs awards of $133,000 and $1.6m in respect of the applications by the defendant that the judge recuse himself and by the plaintiff for inspection of the 16 October 1998 documents, and of the plaintiff's action itself, under O62 r9(4)(b) of the Rules of the High Court.

31. Mr Yip submits that the basis of the judge's exercise of his discretion under O62 r9(4)(b) is clearly wrong. The application by the plaintiff for inspection, he says, was not due to any fault of the defendant. Rather the judge initiated it. Having said that, he submits that it was not unreasonable for the defendant to take out her motion for the judge to discharge himself as he had clearly entered the arena of the dispute by his apparent bias in favour of the plaintiff. Further, he submits, that the awards of gross sum costs were made without considering the history of the action.

32. The judge heard the two applications, first by the defendant that the judge recuse himself, and second by the plaintiff for inspection of the 16 October 1998 documents on 11 and 12 November 1998 giving his reasons on the latter date. Having dismissed the former and granted the latter, he dealt with the costs in the following way:

"I order that the costs of the applications be borne by the Defendant and that these costs should be paid forthwith. In the special circumstances of the case, I exercise my discretion and assess these costs under Order 62 rule 9(4)(b) in the gross sum of $133,000."

33. He dealt with the costs of the substantive action itself at the end of his judgment handed down on 9 February 1999 in the following terms:

"As for costs, having regard to the right of the Plaintiff under the Deed of Mutual Covenant to have its costs on an indemnity basis, the nature of this Action, the course of the proceedings and the submissions made to me on costs of the Action, in the exercise of my discretion I make an order of costs of the Action against the Defendant and hereby assess such costs by way of gross sum assessment under Order 62 rule 9(4)(b) at $1,600,000. This sum of $1,600,000 is in addition to the gross sum costs of $133,000 assessed by me under my Reasons for Decision dated 12th November 1998."

34. In support of his submission, Mr Yip relies upon paragraphs 62/7/14 of Volume 1 of the Supreme Court Practice 1999 which is concerned with the corresponding provision of the English Supreme Court Rules, i.e. r7(4)(b). The main authority cited there is Leary v Leary (1986) 136 New LJ 942. There in their judgment upon an appeal against a gross sum costs order made by Booth J under what was then RSC O62 r9(4), the Court of Appeal said that the suggestion that there ought to be an inquiry in the nature of proceedings before a taxing master at the trial seemed to them ill-founded. They added:

"The terms of Ord 62, r9 themselves give assistance to the solution of this problem. Rule 9(4) clearly imports that the gross sum so specified by the court is 'instead of taxed costs' (see the introductory words) and under (b) 'to a gross sum so specified in lieu of taxed costs'. The purpose of this rule is to achieve exactly the objectives mentioned by Booth J, namely the avoidance of expense, delay and aggravation involved in a protracted litigation arising out of taxation. This would be achieved especially in complex cases. The order, therefore, does not envisage that any process similar to that involved in 'taxation' should take place ...

The unlimited discretion given by Ord 62, r9 must be exercised in a judicial manner. How the powers are to be used vary widely from case to case and each case must be considered on its own merits. It is easy to envisage cases where a judge could be said to have acted unjudicially, e.g. by clutching a figure out of the air without having any indication as to the estimated costs; receiving such an estimate without the details being made available to the other side; or refusing a request to hear submissions on such a schedule if the party against whom the order is to be made makes, on reasonable grounds, an application to be heard. There will be many cases in which the judge may well feel that he or she would be assisted by submissions from counsel on whether (a) a gross figure should be assessed under Ord 62, r9 at all, and (b) if so, at what figure. There is, however, no statutory obligation upon the judge to receive such submissions provided that he observes the rules of natural justice."

The court also went on to consider whether the judge was under any obligation to warn the husband specifically of her powers under Ord 62 r9 and also whether the judge was under any obligation to permit a detailed investigation of the figures in the Schedule of Costs made available to the judge. They pointed out that those matters were essentially within the discretion of the judge. There was no statutory obligation to give any indication of the powers or their proposed exercise under Ord 62 r9. As to the second question, to allow a detailed investigation of the figures would fly in the teeth of the provisions and objective of Ord 62 r9 itself. To allow a trial which would in effect be a preliminary taxation would be an affront to the process. At most, it could be said that a party by reference to a scheme of costs might submit, and successfully in certain circumstances, that in the particular case concerned, it would be wrong to assess a gross figure because of questions possibly arising out of the individual items disclosed in the schedules. The court pointed out also that judges frequently extend, as a matter of courtesy and discretion and in order to achieve justice in the case of ill-informed litigants and persons, considerable help in the conduct of their cases; and that as a matter entirely in the discretion of the trial judge, not to warn the husband of his rights under Ord 62 r9 was impossible to challenge as an exercise of discretion.

35. Leary v Leary was followed in Cheffick Ltd v JDM Associates (No.4) (1991)22 Con LR 51 in which His Honour Judge James Fox-Andrews QC made an extensive citation from the judgment in Leary v Leary. He emphasised that the approach must be a broad one.

36. Leary v Leary was also referred to by Laddie J in Tailormade Golf Co Inc v Rata and Rata [1996] FSR 528. Laddie J relied upon a number of factors before him which pointed strongly in favour of making a lump sum order for payment of costs forthwith. The costs of the application before him had been caused entirely by the defendants; the costs incurred by the plaintiff could have been reduced if the defendants had cooperated and complied with their obligations; and there had been clear warnings from the plaintiff's solicitors that the defendants' obduracy was causing increased costs. He had in addition been supplied with a draft bill of costs at which no criticism had been levelled.

37. The other authorities referred to paragraph 62/7/14 are of no assistance.

38. Reverting to Mr Yip's somewhat sweeping submission, it is difficult to see upon what basis he submits that the judge's exercise of discretion was clearly wrong. True the judge was somewhat more economical with his reasons than would have been helpful and desirable. However, the judge clearly took the view that the defence itself, and the manner in which it was conducted, were unreasonable. It seems to me he was right in this respect and this is a matter relevant to the exercise of discretion under O62 r9(4)(b). Moreover, the judge had clearly been concerned from early in the trial about the costs and had given warnings in relation to them even if not specifically in the context of O62 r9(4)(b). The defendant would certainly have had an opportunity to respond had she not deprived herself of it. The judge also took a broad view and he was entitled to do so. He did not pluck figures out of the air but had cost schedules before him amounting in total $1,831,820.00 which he reduced to the amounts he awarded.

39. In the circumstances it seems to me that the judge's exercise of discretion was neither wrong in principle nor plainly wrong, nor outside the generous ambit of reasonable disagreement, and that interference by this Court with his gross sum costs awards is not warranted.

40. For all of the foregoing reasons, I would dismiss the appeal with a costs order nisi giving the plaintiff its costs.

Keith JA:

41. For the reasons given by Nazareth V.-P., I agree that these appeals should be dismissed, and with the nisi order for costs which he proposes. There is nothing which I can usefully add.

Findlay J:

42. I also agree, and have nothing to add.

Nazareth V-P:

43. The appeal is accordingly dismissed with an order nisi that the plaintiff is to have its costs to be paid by the defendant.