XCHRX CHINA INTERNATIONAL WATER & ELECTRIC CORPORATION v. THE SECRETARY FOR JUSTICE

HCMP 4336/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4336 OF 2000

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J U D G M E N T

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1. This is the summons of the applicant that "Objection no. 5 of the Respondents' List of Objections dated 22 January 2001 be remitted to Master HC Wong for taxation".

2. I assume that the reference to "Respondent's" list of objections should be a reference to the "Applicant's".

3. The objection to which the summons relates is an objection to the Respondent's bill of costs following a final award made by the Arbitrator, Mr Philip Nunn in favour of the Respondent on 31 May 2000.

4. The objection was not however in the original list of objections served by the Applicant in response to the Respondent's bill of costs on 24 October 2000. In that list of objections the Applicant inter alia objected to the Respondent's entitlement in respect of the time spent perusing "the second letter of 3 May 2000" received by the Respondent

5. The taxation hearing was held on 10 January 2001 when the objection to which I have referred was before the Master who made an overall reduction by 15 minutes in respect of a number of letters referred to in the list of objections.

6. The objection to which this summons relates is one of the objections raised in a subsequent list of objections on Review of Taxation filed by the Applicant on 22 January 2001. The objection in that list related for the first time to "2 letters of 3 May 2000" rather than the one originally objected to.

7. The hearing of the review commenced on 16 March 2001 when the solicitor for the Applicant, Mr Shaw addressed the court on the objections to the 2 letters of 3 May 2000. Mr Cheung Man Chui, law costs draftsman appearing for the Respondent, objected to review of this item since there had been no reference to 2 letters of 3 May 2000 in the original list of objections. The hearing was adjourned to 23 May 2001.

8. There is no dispute that on 23 May at the commencement of the adjourned hearing, Mr Shaw for the Applicant told the court that the Applicant was withdrawing any objection to the 2 letters referred to in item 5.

9. At the conclusion of the review hearing and after the Master had asked the parties if there was anything else and Mr Shaw had replied "no Master", there was a conversation during which the Master said she would reserve her judgment and there was a reference to collection of documents. Mr Shaw asked whether he might take back "the 2 letters about the hearing bundles" to which the court replied that he might.

10. There was then a conversation which Mr Cheung Man Chiu has described in his affirmation as an informal chat which he maintained did not form the part of any argument submission or application to the court about whether the Applicant was still sticking to his stance advanced on the 16 March 2000 regarding the 2 letters of the 3 May 2000 to which Mr Shaw replied in the affirmative.

11. It is reasonable to infer that whatever she may or may not have heard of this latter conversation it did not impact itself on the Master's mind. In her Reasons for Decision, dated 20 June 2001, she recorded that item 5 had been withdrawn by the Applicant at the review.

12. The Master was asked by the Applicant to review her decision inter alia by a letter of 16 August 2001 which informed her that at the conclusion of the hearing on 23 May Mr Shaw had reinstated item 5 and that the Respondent had confirmed that fact by letter. In fact the letter from the Respondent, which was enclosed with the letter to the court, only confirmed that Mr Shaw had confirmed to Mr Cheung that the Applicant was maintaining its original stance regarding item 1, but the letter maintained that that had not been formally communicated to the ward.

13. In response to this application, the Master wrote an addendum to her Review of the Decision in which she declined to exercise her discretion to reopen the taxation on the ground that the 2 letters were not objected to in the original list of objections.

14. While it was correct that objection had not originally been raised to the 2 letters, objection had been raised to one of those letters. This was pointed out to the Master in a letter of 30 August 2001 from the Applicant's solicitor.

15. As a result the hearing took place on 1 November 2001 during which both parties made submissions.

16. During that hearing Mr Cheung informed the court that at the conclusion of the review on 23 May, Mr Shaw had told him that he would be reinstating item 5 but that this was not communicated to the court. Mr Shaw however disagreed.

17. The Master, who would have had her own note of the hearing on 23 May, concluded in her decision which was delivered on 21 November 2001 that while Mr Shaw had commented to Mr Cheung his intention to reinstate item 5 Mr Shaw had never openly informed the court of his intention according to Mr Cheung.

18. The Master described the Applicant's conduct to be puzzling and opportunistic and concluded that it would be "unfair and unjust" to allow reinstatement of the review of the said item. Such conduct could not be condoned and the reinstatement of the item cannot be entertained when the receiving party expressed strong objection to it. She said to do so would amount to a travesty of justice. For that reason and the fact that she had not been shown any reasons for the Applicant's failure to include both letters of 3 May 2000 in the original list of objections she dismissed the application to allow the review regarding the letters of 3 May 2000.

19. Since the Master delivered that ruling the Applicant has obtained a transcript of the hearing of 23 May which was sent to the Master inviting her to reconsider her decision. It was pointed out that there was no "strong objection" from the Respondent to the reinstatement and that the Respondent had made no objection and the court was fully informed of Mr Shaw's intention to reinstate item 5.

20. The Master's response was that she had fully considered the matter and determined it on 29 November 2001. I assume she must have been referring to her ruling of 21 November.

21. I would note firstly that the Master's reference to "strong objection" by the Respondent was not a reference to an objection made by the Respondent in response to the application for reinstatement of item 5 at the hearing on 23 May but to inclusion of the item when it was raised on 16 March. (See paragraph 5 of her ruling on clarification on review.)

22. I have been referred to the transcript this morning. It is clear that even on the most favourable interpretation to the Applicant the words that referred to Mr Shaw "sticking to his previous argument" were uttered very much as an afterthought.

23. As I commented during the course of submissions the transcript is confusing in a number of respects and does not make clear whether material parts relating to Mr Shaw sticking to his argument were conversations with Mr Cheung or with the Master. The fact that part of the conversations at least were private conversations with Mr Cheung is borne out by Mr Shaw referring to the Master in the third person. I would observe that the Master herself obviously did not understand that the Applicant was seeking leave to reinstate its objection to item 5.

24. It is incumbent on an applicant seeking to reinstate an item which it had expressly abandoned to make that clear to the Master. Mr Shaw obviously did not do so. By conducting private conversations with Mr Cheung in the course of what he was saying to the Master, he appears to have led the Master to believe that what was said in relation to reinstatement, if indeed she had heard it, was not addressed to her.

25. In the light of the fact that this application relates solely to 2 letters, I do not consider in the circumstances to which I have referred that the matter should be referred back or remitted to the master.

26. My view is reinforced by the fact that the summons still refers to item 5 (i.e. the objection to 2 letters) which were only raised in the review when only one letter had originally been objected to.

27. I dismiss the Applicant's summons.