THE INCORPORATED OWNERS OF KAN OKE v. LEE YIU KEI AND ANOTHER

HCMP 33/2014

[2019] HKCFI 2872

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 33 OF 2014

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REASONS FOR DECISION

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1.  At the end of the hearing on 27 November 2019, I gave leave to the defendants (“Ds”) to withdraw a notice of appeal filed by Ds on 26 April 2019 (“the appeal”).  At the same time, I ordered that costs of the appeal be paid by Ds to the plaintiff (“P”) on the District Court’s scale forthwith and be summarily assessed.  These are my reasons.

2.  By a summons dated 4 April 2019, Ds sought an order to stay the execution of the order obtained by P on 5 April 2016 and subsequently amended on 13 January 2017. On 26 April 2019, the said summons was heard by Master Lui.  The master dismissed the summons and ordered Ds to pay costs to P.  On the same date, Ds lodged the appeal against Master Lui’s decision.  Ds stated in the notice of appeal that the estimated length of the appeal hearing would be 20 minutes.

3.  Originally, the appeal was scheduled to be heard on 30 October 2019 at 2:30 pm, with 20 minutes reserved.  Having briefly read the papers, I was of the view that the appeal could not be disposed of within 20 minutes. On 3 October 2019, I issued directions to the parties, in which I told the parties that the appeal hearing would be moved to 24 October 2019 at 10 am, with 3 hours reserved.  I also gave directions concerning the preparation of hearing bundles and written submissions.

4.  On or about 10 October 2019, Ds wrote to the court and said that they cancelled and withdrew their notice of appeal, and they requested the court to vacate the hearing concerning the appeal.  They also said that they would not be free on 24 October 2019.

5.  On 11 October 2019, I directed P to provide a written reply to Ds’ letter.  By their letter dated 14 October 2019, P’s solicitors replied and said, inter alia, that P would agree to the proposed withdrawal of the appeal, provided that Ds would pay costs of the appeal to P.

6.  On 15 October 2019, I issued directions and required Ds to clarify in writing whether they intended to withdraw the appeal, or they were merely requesting to move the substantive hearing of the appeal to another date.  On or about 16 October 2019, Ds wrote to the court and asked to have the substantive hearing of the appeal on 30 April 2020 or in the last week of April 2020.  Ds also insisted that the substantive hearing must be held in the afternoon at 2:30, the length of the substantive hearing must be 20 minutes, and there should be no hearing bundle and no written submission.

7.  Having read Ds’ letter dated 16 October 2019, I took the view that it would be necessary to have a direction hearing to understand the reasons of the proposal made by Ds in the said letter.  The direction hearing should be held as soon as practicable so that there would not be any substantial delay in disposing the appeal lodged by Ds.  On 16 October 2019, I issued the following directions to the parties:

“1. The hearing on 24 October 2019 be vacated.

2. There be a direction hearing for the appeal lodged by [Ds] on 26 April 2019 on a date to be fixed before DHCJ MK Liu in Chambers (open to public) with 30 minutes reserved.

3. The parties shall approach the listing office to fix the date of the said direction hearing on or before 22 October 2019, failing which a date will be fixed by the Court without consulting the parties.

4.  The direction hearing shall take place on or before 20 December 2019.”

8.  On or about 17 October 2019, P’s solicitors wrote to Ds to inform them that P’s solicitors would attend the registry of the court to fix a hearing date in accordance with my directions on 22 October 2019 at 11 am. P’s solicitors asked Ds to give a reply concerning the proposed time for fixing a hearing date by 21 October 2019, or P’s solicitors would fix a hearing date in Ds’ absence.

9.  On or about 17 October 2019, Ds wrote 2 letters to P’s solicitors.

(1)     In the first letter, Ds gave a reply to P’s solicitors’ letter dated 14 October 2019. Ds objected to P’s claim for costs of the appeal. Ds said that they had withdrawn the appeal and P’s solicitors and counsel would have no need to do any work.

(2)     In the second letter, Ds said that they would not be free on 22 October 2019 and they objected that they had only been provided with short notice of the fixing-date appointment.

10.  On 21 October 2019, Ds wrote to the court and said they requested to vacate all appeal hearings, and there would be no need to have any direction hearing and any fixing-date appointment. Ds also expressed their dissatisfaction of the directions given by the court on 16 October 2019.

11.  On 22 October 2019, P’s solicitors attended the registry of the court and fixed the direction hearing on 27 November 2019. Ds were absent when the date of the direction hearing was fixed.

12.  On 30 October 2019, I gave the following directions to the parties:

“1. The parties shall attend the hearing on 27 November 2019.

2.     The court may make any order in the hearing as the court deems fit, including an order finally disposing of the appeal.”

13.  On or about 9 November 2019, Ds wrote to the court and said that they had withdrawn the appeal and there would be no need to have any hearing. They also complained that the direction hearing on 27 November 2019 was fixed unfairly in their absence, for they were not free and unable to attend the fixing-date appointment on 22 October 2019.

14.  I do not accept that the direction hearing on 27 November 2019 was unfairly fixed in Ds’ absence. In their second letter to P’s solicitors dated 17 October 2019, Ds only said that they were not free on 22 October 2019.  No reason was given as to why they were not free on that day.  Further, there was no counter-proposed date and time for going to the registry of the court to fix a hearing date. In these circumstances, P’s solicitors cannot be criticized for attending the registry of the court on 22 October 2019 to fix the hearing date of the direction hearing. In any event, both Ds were able to attend the direction hearing on 27 November 2019, and the 2^nd defendant (“D2”) on behalf of Ds has made lengthy oral submissions in the direction hearing. 

15.  Initially, Ds did not make themselves clear as to whether they intended to withdraw the appeal or to have the substantive hearing of the appeal at a later time.  Subsequently, in their first letter dated 17 October 2019, Ds stated that they opposed to P’s claim for costs for they had withdrawn their appeal.

16.  In the hearing on 27 November 2019, Mr Chan for P submitted that P had no objection to Ds’ application for leave to withdraw the appeal, but costs of the appeal should be awarded to P.  Mr Chan submitted that since his firm had agreed to charge P on the District Court’s scale, P was only claiming costs of the appeal against Ds on the District Court’s scale.  D2 on behalf of Ds submitted that they had withdrawn their appeal and P should have incurred no costs as a result of the appeal.  If there has been any cost incurred by P in relation to the appeal, such costs were occasioned by the unreasonable and unnecessary works done by P’s solicitors and the improper directions given by the court. 

17.  After hearing submissions from the parties, at the end of the hearing, I made the order set out in paragraph 1 above.  In my view, there is no merit in D2’s submissions.  Ds have lodged the notice of appeal on 26 April 2019, and Ds did not make themselves clear whether they intended to withdraw the appeal at any time before 17 October 2019.  There was nothing wrong for P’s solicitors to do preparatory work in relation to the appeal before 17 October 2019, including the preparation of the hearing bundles.  Further, on and after 17 October 2019, Ds insisted that they should not bear costs of the appeal, and therefore it could not be said that everything in relation to the appeal had been settled.  There was nothing wrong for P’s solicitors to continue to do work relating to the appeal.  Turning to the directions given by the court, I do not accept that there is any impropriety in the directions given by the court.  As to the estimated length of the appeal hearing and the necessity of having hearing bundles and written submissions for the disposal of the appeal, this court is entitled to take a view different from Ds’ own view.  Ultimately, case management matters are determined by the court and not dictated by Ds.  P has incurred costs as a result of that notice of appeal.  As a result of the Ds’ abandonment of the appeal, costs should follow the event.  There is no reason why Ds should not bear costs of the appeal.

18.  Mr Chan has provided a bill of costs for summary assessment to the court and to Ds in the hearing on 27 November 2019.  D2 complained that the bill of costs was only provided to Ds during the hearing and Ds had no sufficient time to study the bill.  However, D2 had made lengthy oral submissions on P’s bill of costs in the hearing.  I also gave leave to Ds to put in a written reply to the said bill on or before 2 December 2019.  However, Ds have not put in any written reply pursuant to my leave. Having considered the submissions made by the parties in the hearing, I summarily assess the costs to be paid by Ds to P at HK$25,000.

19.  After the hearing on 27 November 2019, Ds wrote several letters to this court on the same date.  In one of those letters, Ds said that they did not withdraw the appeal, and they repeated the request made by them in their letter dated 16 October 2019, ie postponing the substantive hearing of the appeal to late April 2020, with 20 minutes reserved, with no hearing bundle and no written submission.  I must say that the request made by Ds is an extremely unreasonable request.  Ds have clearly and unequivocally confirmed in the hearing on 27 November 2019 that they withdrew the appeal, and I have made the order as stated in paragraph 1 above in the hearing.  Ds are not allowed to change their stance from time to time.  Ds’ request as stated in the said letter must be refused.