LI FUNG KAI v. FUNG SAU LIN

HCMP 919/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 919 OF 2013

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D E C I S I O N  O N  A S S E S S M E M T  O F  C O S T S

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1.  By my decision dated 9 September 2013 (“Decision”), I dismissed the plaintiff’s application by summons for an order that the present proceedings be continued as if they had begun by the issue of a writ of summons on 30 April 2013, and that service on and acknowledgment of service and notice of intention to defend of the defendant do stand (“Summons”). Such dismissal is without prejudice to any future application by the plaintiff under Order 28, rule 8(1) of the Rules of the High Court if so advised and if sufficient evidence is available to justify such course of action.

2.  By the Decision, I also granted a costs order nisi that the plaintiff shall pay to the defendant costs of the Summons to be summarily assessed and paid forthwith (“Cost Order”).  This is the decision on summary assessment of costs under the Cost Order which is now absolute.

3.  Since costs under the Cost Order are assessed on party and party basis, only costs that are necessary or proper for the attainment of justice or for enforcing or defending the taxing party’s rights will be allowed (see Order 62, rule 28(2) of the Rules of the High Court).

Item C1

4.  Under this item, the defendant claims $4,000 being 1 hour spent by the handling solicitor CBS for attendance on client.  The plaintiff claims that the Summons is simple in nature, and the time required for attendance on client would be limited since no specific instructions would be required.  In my view, it is not correct to say that no affirmation has been filed by the defendant.  CBS filed his affirmation in 30 August 2013.  Although at the hearing of the Summons I did comment that it would not have been necessary to file an affirmation to exhibit court orders (see paragraph 4(c) of Practice Direction 10.1) and correspondence already exhibited in earlier affirmations, it must not be forgotten that the inter partes correspondence in exhibits “CBS-1” to “CBS-5” of such affirmation have not been exhibited to the earlier affirmations and the plaintiff opposes the defendant’s request to include such correspondence in the hearing bundle.  It does not now lie in the plaintiff’s mouth to say that the defendant’s solicitors cannot recover costs of CBS’ affirmation.  In any event, the costs of CBS’ affirmation have not been disallowed under the Costs Order.

5.  I bear in mind that the defendant’s solicitors would have to inform the defendant about the application and to advise on its ramifications. Instructions would have to be sought from the defendant to resist the Summons.  The defendant’s solicitors would also have to report to the defendant on what happened at the hearing of the Summons and the contents of the Decision.  In my view, 1 hour of CBS’ time at $4,000 is necessary or proper for this item.

Item D1

6.  The defendant claims 3 hours of CBS’ time in the sum of $12,000 for preparation of documents.  The plaintiff argues that only brief 6-page written submissions have been prepared, and the Summons does not involve complicated questions of law.  The plaintiff proposes to allow 1 hour of CBS’ time.  Having considered the subject matter and nature of the application, the legal research on the disputed issues as well as the contents of the written submissions and list of authorities by the defendant’s solicitors, I consider the necessary or proper time for preparation of documents by CBS is 2 hours at $8,000.

Item D2

7.  The defendant claims 2 hours of CBS’ time for perusal of documents.  The plaintiff claims that only 1 hour of CBS’ time is justified for perusing the supporting affirmation and the plaintiff’s skeleton submissions and list of authorities.  But in my view, the defendant’s solicitors will also need to peruse the Summons and the Decision, and to review the court documents and other affirmations to refresh in order to deal with the affirmation.  But I agree that CBS should or would not need to spend 2 hours.  In all the circumstances, I consider 1½ hours of CBS’ time should be allowed under this item at $6,000.

Item D3

8.  The defendant claims that 2 hours of CBS’ time at $8,000were spent on preparation for the hearing of the Summons.  The plaintiff argues that this is a simple matter with 30 minutes reserved and little preparation is required.  Given CBS’ personal involvement in preparing the written submissions and the nature of the application, I allow 30 minutes of CBS’ time at $2,000 as being necessary or proper for this item.

Items F

9.  The defendant claims $500 for travelling expenses. It appears that such item relates to expenses for CBS’ travel to and from court for the hearing of the Summons.  This is not a recoverable item under party and party taxation and is therefore disallowed.

Conclusion

10.  The total costs of the defendant on his statement of costs are assessed at $25,300 (being $300 (B1) + $4,000 (C1) + $8,000 (D1) + $6,000 (D2) + $2,000 (D3) + $5,000 (D4)).  I therefore order that the plaintiff shall forthwith pay costs in the sum of $25,300to the defendant.