JORA SISI OMAR v. JORA HARMIDAR OMAR

HCAP 19/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 19 OF 2011

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DECISION

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Introduction

1. This is an appeal of the plaintiff against the Decision of Master M Wong dated 24 October 2014 (“the Decision”) whereby her application for a review of taxation of the bills of costs of the defendant dated 22 May 2013 (“the Bill”) was dismissed.

2. The Bill relates to the costs of the defendant of three summonses. The plaintiff issued two of them and the defendant issued the remaining one. The plaintiff’s applications were made under O.14, O.14A and O.18 r.19 whereas the defendant’s application was made under O.18 r.19. Poon J heard all three applications on 12 March 2013.

3. By the Judgment dated 25 March 2013, Poon J allowed the defendant’s application and dismissed the plaintiff’s applications. Poon J further ordered that the plaintiff do pay the defendant her costs of the three applications forthwith (“the Costs Order”). As a result, the defendant produced the Bill.

4. Master M Wong first taxed the Bill on 26 May 2014. Dissatisfied with the taxation, the plaintiff applied for a review on 29 September 2014. Her application was dismissed by the Decision and hence the plaintiff mounts this appeal.

The relevant provision

5. O62 r.35A, Rules of the High Court (“the Order”) provides that a judge on his second review of the taxing master’s decision is not required to conduct a taxation de novo, but only considers the reasons for the taxing master’s decision to ascertain whether or not the taxing master erred in principle, took into account irrelevant matters or failed to take into account relevant matters.

6. The nature of this appeal is thus defined by the Order.

The grounds of the plaintiff

7. At the hearing, the plaintiff made a lot of complaints about the defendant’s conduct in these proceedings. She contends that the Judgment of Poon J was wrongly procured by misleading materials supplied by the defendant and misconceived submissions made on her behalf. In other words, the Costs Order was procured by deception. The plaintiff asserts that if Master Levy, who had followed their disputes for more than 10 years, had heard the applications instead of Poon J, the outcome would have been very different and she should have been granted judgment against the defendant.  

8. Following from that, the plaintiff goes on to say that Master M Wong should not merely focus on the figures in the Bill. He should not have dismissed her complaints as irrelevant. She argues that Master M Wong should have taken into consideration all the circumstances of the matter including in particular the improper conduct of the defendant and should have disallowed the entire Bill.

9. The plaintiff makes it clear that she does not complain about any individual items of the Bill. Her complaint is about the Bill in its entirety. She reiterates that she is not arguing about dollars and cents and it is a question of all or nothing. 

10. About the Decision, the plaintiff complains about the untruthfulness of such documents produced by the defendant such as chronology, skeleton argument and list of authorities referred to in the Bill. She maintains that the costs of such documents should not be borne by her.

11. Concerning the counsel fee sought to be recovered by the defendant, the plaintiff complains that counsel of the defendant only gave her a large pile of authorities shortly prior to the hearing before Poon J. She also alleges that his legal submissions were deliberately misleading. She argues that Master M Wong should not have merely reduced his brief by HK$10,000 and he should have disallowed all the counsel fee.

12. The plaintiff further complains about the absence of the defendant’s solicitors at the call-over hearing on 17 June 2013. She accepts that an adverse cost order (HK$200) was already made against the defendant as a result.

13. Lastly, she complains that the defendant’s legal representatives wrongfully submitted that her legal aid application was refused. This submission gave a false impression that her application for stay of execution was unmeritorious.

14. These are her major complaints made at the hearing and I have heard her out. It is clear to me that none of them falls within the ambit of the Order. This is not an appeal against the Judgment of Poon J including the Costs Order. The plaintiff explains that she has decided not to do so because of the legal advice she has received. She then has to bear the consequences following from her decision including her liability to pay costs to the defendant under the Costs Order. The defendant was entitled to present the Bill and have it taxed in accordance with the established principles.

15. Nothing advanced by the plaintiff can cause me any concern about the correctness of the taxation of Master M Wong. I cannot accept her submission that Master M Wong in any way erred in principle in that he failed to take into account the alleged improper conduct of the defendant and her legal representatives. I am of the view that her allegations of improper conduct have nothing to do with the integrity of the Bill and have no bearing on the taxation of the Bill. Master M Wong cannot be faulted in his taxation of the Bill. 

Conclusion and Order

16. In the premises, I see no ground to interfere with the discretion of Master M Wong exercised in the Decision. The appeal of the plaintiff must be dismissed. I further make an order nisi that the plaintiff should pay the defendant her costs of this appeal forthwith, to be taxed if not agreed.