CHAN KA KIN v. LAI KAM TONG AND ANOTHER

                             HCPI 698/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 698 OF 2007

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D E C I S I O N

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1. By a notice of appeal dated 8 August 2008 the 1^st defendant appeals against the decision of Master B. Kwan given on 21 July 2008 on orders for costs only. 

2. It is trite that a judge in chambers will not allow an appeal from a master’s costs order unless it is unreasonable or that the master erred in law.  Such application 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 (58/1/6 Hong Kong Civil Procedure 2008).

3. I understand from the submissions that the master gave oral reasons when deciding the matter on 21 July 2008.  However, the transcript of such oral reasons has not been placed before me.  That has not yet been obtained.  Instead of waiting for the transcript of the oral reasons and seeking an adjournment of this appeal the parties are before me today on the substantive hearing of the notice of appeal. 

4. Ms Wong asks for an adjournment of the appeal so that the transcript of the oral reasons can be obtained and for the appeal to be fixed on a new date after such transcript has been obtained.  In the circumstances I see no option but to adjourn the appeal to a date to be fixed before any judge with an estimated length of 2 hours. 

5. Ms Wong, for the 1^st defendant, also asks for leave to issue the notice of appeal out of time as the notice of appeal was issued 4 days late. 

6. Ms Yan, for the plaintiff, does not oppose that application since the notice was only 4 days late.  I make an order that leave be given to the 1^st defendant to issue the notice of appeal against the costs order of Master B. Kwan made on 21 July 2008 out of time. 

7. That leaves the question of the costs of the adjournment.  The costs today have been wasted because the transcript has not been obtained of the reasons of the master in giving the order for costs that she did.  Since this is the 1^st defendant’s appeal it seems to me it was incumbent on the 1^st defendant to put all matters properly before the Court.  The plaintiff is not at fault for this adjournment and, in my view, the proper order for costs is that the costs of and occasioned by the adjournment are to be costs to the plaintiff to be borne by the 1^st defendant. 

8. That leaves the question of the 2^nd defendant’s costs.  The appeal does not concern the 2^nd defendant because this is an appeal as to the costs order made by the master in relation to the 1^st defendant and the plaintiff.  There is no satisfactory explanation presented by Ms Wong for the serving of the notice of appeal on the solicitors for the 2^nd defendant whereby they are required to attend today.  It seems to me those costs have been wasted and, in my view, the 1^st defendant should pay the 2^nd defendant the costs for today.  I will excuse the 2^nd defendant from further attendance at the appeal to save further costs.  Those are my orders for costs. 

9. I also make an order that the 1^st defendant’s own costs be taxed in accordance with Legal Aid Regulations.