XCHRX HESSON DEVELOPMENT LTD. v. TANG KI FAN TSO with TANG TING KWAI as manager

HCA 5584/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 5584 OF 1998

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J U D G M E N T

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1. This is an appeal from the order of Master Poon made on 9th September 1998 whereby he refused a certificate for counsel for the Defendant. At that hearing Master Poon was dealing with an application by the Defendant for security for its costs against the Plaintiff in this action. The Defendant instructed counsel to appear at that hearing but the Plaintiff was represented by solicitors.

2. At the hearing the amount of security for costs was agreed at $600,000.00. The only issues were as to the mode of security and the costs of the summons. The Plaintiff wanted to pay the sum to its solicitors as stakeholders and the Defendant wanted the Plaintiff to make a payment into court which is the usual mode of security. Without calling upon counsel for the Defendant, the Master decided that the Plaintiff should pay the sum into court. He also ordered the Plaintiff to pay the costs of the application. The Master, however, refused to grant a certificate for counsel after hearing arguments from counsel.

3. As the appeal relates only to a matter as regards costs, the appeal does not operate by way of re-hearing. It is clear that such an appeal should not be allowed unless it can be shown that the order made by the Master was unreasonable or erred in law, i.e. if he either failed to take into account proper matters or took into account matters that should not have been taken into account (See my judgment dated 2nd December 1998 in HCA2220 of 1998 Paul Y.-ITC Construction Limited v. Kin Shing Company Limited at page 6.).

4. Master Poon was, of course, not obliged to give reasons for his decision nor did he do so. I have considered the submissions made by counsel on behalf of the Defendant. These do not, in my view, begin to show that the order made by the Master was unreasonable or that he erred in law. I would also add that, in my view, the arguments that could have been advanced on the mode of security and the costs of the summons were all matters which any reasonably competent solicitor who handles litigation would have been able to make without the necessity of instructing counsel to argue the same before the Master. I too would have refused the certificate for counsel for the Defendant.

5. The appeal is dismissed with costs to the Plaintiff.