東廬大樓業主立案法團 v. 劉漢光(離世劉堅的遺產管理人) Respondent

LDBM 233/2014

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 233 OF 2014

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D E C I S I O N

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1. This is an argument between the parties concerning the question of costs for the withdrawal of an interlocutory application dated 3 October 2014 taken out by the respondent (“the Summons”).

Background

2. The applicant (“IO”) in this case commenced these proceedings by the filing of a Notice of Application on 18 August 2014 against the respondent, the administrator of the estate of the owner of Parking Lot No. 3 and 52 (“the Carparks”) at the Basement of Tung Lo Court (“the Building”) for outstanding management fees due between 1999 and August 2014 as well as repair costs for the common parts of the Building due between 1994 and 2010.  The respondent had sold the Carparks to a Madam Sit Sau Ming (“Mdm Sit”) on 12 June 2014.

3. On 3 October 2014, the respondent filed the Summons asking for these proceedings be stayed pending the outcome of High Court Miscellaneous Proceedings No. 523 of 2013 (“the High Court Proceedings”) which involved the IO and Mdm Sit, being the plaintiff and defendant respectively in the High Court Proceedings.

4. The basis for the Summons in asking for these proceedings to be stayed pending the disposal of the High Court Proceedings is that the entitlement of the IO to charge management fees is an issue in the High Court Proceedings and relevant to these proceedings.

5. At the first call over hearing on 6 October 2014, it is directed that the Summons be adjourned for argument on 18 November 2014 and for parties to file affirmations in support or in opposition to the Summons.

6. At the hearing on 18 November 2014, both parties are represented by counsel.  Counsel for the respondent asked for an adjournment of the hearing on the ground of late instructions.  Application for adjournment was allowed and the following orders (“18 Nov Order”) were made :

(a) Case be adjourned to 9 January 2015 for argument;

(b) Parties to file and exchange written submissions 7 days before hearing; and

(c) Costs of and occasioned by the adjournment be to the IO, with certificate for counsel.

7. The following exchange of correspondence between the solicitors for the parties, S K Lam, Alfred Chan & Co (“SKL”) for the IO and Cham & Co (“CC”) for the respondent, are relevant to the question of costs concerning the Summons :

Date and Time of Service	Event
31/12/2014 1403hrs	Faxed letter (dated 30/12/2014) from CC to SKL indicating the decision of the R to withdraw the Summons upon counsel’s advice, with draft Consent Summons (“Draft”) attached, suggesting hearing date on 9 January 2015 be vacated with costs to the IO
31/12/2014 1705hrs	Faxed from SKL with proposed amendment on Draft (“Amended Draft”), the only amendment is on the costs order to include counsel’s certificate and to be taxed on indemnity basis.  No reply from R
03/01/2015 1157hrs	Faxed from SKL again with Amended Draft.  No reply from R
05/01/2015 1204hrs	Letter from SKL indicating given no reply from R to the Amended Draft, written submissions of the IO already filed with court in the morning of 05/01/2015 and hereby served on the R according to the 18 Nov Order
05/01/2015 1344hrs	Letter from CC to SKL indicating not agreeable to the terms suggested in the Amended Draft and will take out summons for the withdrawal of the Summons and look to IO for costs
05/01/2015 1844hrs	Letter from SKL to CC stating reasons to justify the proposed amendment in the Amended Draft.  No reply from R
06/01/2015	R takes out another summons returnable on 09/01/2015 for withdrawal of the Summons (“Withdrawal Summons”) and costs of the Summons be to the IO except costs of the hearing be to the R
07/01/2015 1639hrs	Letter from SKL counter proposed costs be to the IO with certificate for counsel only; not on indemnity basis
08/01/2015 1429hrs	Letter from CC turning down the counter proposed costs order of SKL
09/01/2015	The hearing originally fixed for the Summons as well as for the Withdrawal Summons (“the Hearing”)

Respondent’s Contention

8. Mr Chan for the respondent submitted that there is no basis for the IO to insist on a counsel’s certificate when the Hearing can be vacated and spared if the Draft was signed by the parties as proposed by the respondent.

9. Mr Chan relied on Schedule 1 Part II para 2.3 of the District Court Rules and submitted that counsel’s certificate is only applicable for the scenario where there is a hearing before the trial judge.  Since the Hearing can be vacated by the consent summons, the insistence by the IO for counsel’s certificate is not justified without a hearing. 

10. And with the withdrawal of the Summons, counsel’s attendance is no longer required at the Hearing, the matter as to whether counsel’s certificate is justified should be left to the taxing master who should consider the complexity of the matter and the specialized knowledge required of by solicitor or counsel in taxation (Schedule 1 Part II para 1(2) of District Court Rules).  Without a hearing, the trial judge would not be able to tell if the merits or complexity of the case justified counsel’s attendance.

11. It is the respondent’s stance that costs for the withdrawal of the Summons should be to the IO except costs of this hearing be to the respondent to be taxed on indemnity basis with certificate for counsel.

Applicant’s Contention

12. Mr Siu for the IO submitted that counsel had been engaged by both parties in the adjourned hearing on 18 November 2014.  The respondent only decided to withdraw the Summons and notified the IO on 31 December 2014 by fax.  Given the lateness of the respondent in seeking to withdraw the Summons which involved an unmeritorious application, costs should be awarded on an indemnity basis.

13. And since the 18 Nov Order stipulated that written submissions had to be filed and served on 2 January 2015 and hearing to be held on 9 January 2015, counsel had already been engaged by the IO, with brief delivered before 31 December 2014, to prepare the submissions as well as to attend the Hearing; hence counsel’s certificate is reasonable and more than justified.

14. The respondent had not replied to the Amended Draft till 5 January 2015 which is already beyond the time required for the submissions to be filed and served. Given there is no reply from the respondent leaving the IO not clear if the respondent is still minded to withdraw the Summons or agreed on the question of costs; hence the filing of written submissions on 5 January 2015 by the IO.

15. The applicant is asking for costs of the withdrawal of the Summons including this hearing be to the applicant, with certificate for counsel, to be taxed on an indemnity basis.  And should the court find that the respondent should have costs of this hearing, no certificate for counsel should be granted.

Discussion

16. The only issue to be determined is whether counsel’s certificate asked for by the IO is justified in view of an indication of withdrawal of the Summons by the respondent and for the Hearing to be vacated.

17. The nature of the counsel’s certificate is for the trial judge to certify that the attendance of counsel before the court is being proper in the circumstances of the case.  But I do not agree with Mr Chan that granting of counsel’s certificate is only applicable when there is an actual hearing held.  Mr Chan’s contention seemed to suggest that even if counsel had been engaged to appear at a hearing, if the hearing is being vacated by consent, the trial judge is not in a position to consider the question of counsel’s certificate and such matter should be left to the taxing master.  I beg to differ.

18. The rationale of having the trial judge to make orders as to the counsel’s certificate must be that the trial judge, having presided over the case at the hearing, should be in the best position to assess as to whether counsel’s involvement is justified in the case.  With the trial judge granting a counsel’s certificate, the taxing master can be spared with the task of assessing the same question.  So, to reserve the question to the taxing master instead of the trial judge is putting the cart before the horse.

19. This court had all along been involved in these proceedings.  The argument of the Summons is supposed to be dealt with at the hearing on 18 November 2014. Counsel was engaged by both parties then and parties had already filed their respective affirmation concerning the Summons.  Having the benefit of reading the documents in connection with the Summons, this court is well aware of the issues and argument involved.  These could be the basis for this court to rule as to whether counsel’s attendance is justified and I think this court would be in a better position, when compared to the taxing master, to decide on the same.  

20. In any event, there is no argument before me that counsel’s involvement in this case is not justified.  Instead, Mr Chan had, in his submission, confirmed that there is no dispute that counsel may be justified in this case before 31 December 2014 but the only issue is whether counsel’s certificate from this court is required.

21. A hearing had already been fixed for the argument of the Summons according to the 18 Nov Order.  The IO had, pursuant to the 18 Nov Order, engaged Mr Siu to deal with the matter as well as appearing before this court on 9 January 2015.  Given the fact that the respondent had only indicated his intention to withdraw the Summons 5 working days before the Hearing and submissions was required to be filed on 2 January 2015, it would not be surprising that the IO had already engaged counsel by 31 December 2014. 

22. The Hearing may be vacated by consent but this does not mean that the engagement of counsel by the IO for the Hearing is not justified, albeit attendance is no longer required.  If counsel’s attendance is justified for the Hearing, why should the parties not agree on the granting of counsel’s certificate in the consent summons and why can’t this court, as the trial judge, grant an order in such terms.  There is nothing unreasonable for the IO to ask for counsel’s certificate be dealt with in the consent summons give the fact that attendance of counsel at the Hearing is justified, albeit the Hearing may well be vacated by consent.

23. Having considered the above, the insistence by the applicant for a counsel’s certificate in the consent order is reasonable and the refusal by the respondent must be unfounded.  Since parties had to attend court for this argument just because of the respondent’s unreasonable refusal to consent to the terms of the Amended Draft, the respondent should pay the applicant costs of this hearing.

24. Having said that, I am not satisfied that the taking out of the Summons or the refusal to accept the Amended Draft by the respondent are conducts that justified an indemnity costs order.  I found the applicant had failed to demonstrate some special or unusual feature which would justify taxation on this more generous scale.

The Order

25. It is ordered that costs of and occasioned by the Summons taken out by the respondent dated 3 October 2014 including this hearing be to the applicant, to be taxed if not agreed on party and party basis, at District Court scale with certificate for counsel.