TSAO CHI CHING v. TSAO LUNG MAY

CACV 132/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 132 OF 2013

(ON APPEAL FROM HCCA NO. 2054 OF 2012)

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DECISION
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Hon Chu JA (giving the decision of the Court of Appeal):

1. On 3 February 2015 we handed down our judgment dismissing the appeal of Madam Tsao Lung May (“the respondent”). At paragraph 36 of the judgment, we ordered the respondent to personally pay the costs of Mr Tsao Chi Ching (“the applicant”) in the appeal, including the costs of the three summonses issued by the respondent. We further determine, on a nisi basis, the amount of the applicant’s costs to be $5,000, and indicated that any party wishing to vary the amount should within 14 days from the date of the judgment apply to the court in writing.

2. By letter dated 15 February 2015, the applicant applied to vary the amount of his costs to $45,377.  On the letter, it was stated that it had been copied to the respondent. 

3. The respondent had not sent any written objection to the court, in accordance with the directions given in paragraph 36 of the judgment. 

4. In support of his application, the applicant had provided a bill of costs dated 26 May 2014 (“the Bill of Costs”) issued by Hastings & Co, which represented the applicant in the proceedings below and in this appeal until the applicant filed a notice to act in person on 10 January 2014. 

5. The Bill of Costs covered the period from 1 August 2013, which was after the appeal herein had commenced, to 23 May 2014 and was in respect of three sets of proceedings, namely, HCCA 2054 of 2012, CACV 132 of 2013 and Caveat No. 2054 of 2012. It should be noted that only CACV 132 of 2013 is the subject matter of the costs order in question.

6. The total amount of the work described in the Bill of Costs (as shown on page 4) was $24,194.  The total figure of $40,377 given at the end of the Bill of Costs has included an outstanding balance due under an earlier bill of costs dated 15 August 2013 ($16,183).

7. In applying to vary the amount of costs to $45,377, the applicant is seeking to add the total amount due to his solicitors (i.e. $40,337) to the amount of $5,000 which we had previously determined on a nisi basis to be the costs that he had incurred.

8. A costs order is to reimburse the winning party the costs he had incurred for the proceedings.  The receiving party has the duty to prove (i) he has incurred costs liability for the proceedings in which the costs order is made; and (ii) the amount of costs he has incurred for the proceedings for which the paying party is liable to pay.  Further, since the costs awarded to the applicant are on party-and-party costs, the respondent is only liable for such costs that are both proper and necessary.  

9. The amount of $5,000 which we determined on a nisi basis is only an estimate made at a time when there was no information of the legal costs and disbursement that the applicant had incurred for this appeal.  It will become superseded once the applicant has provided details of the costs he has incurred.

10. As for the amount of $16,183 due under the bill dated 15 August 2013, the Bill of Costs gives no description of the work covered by it.  In the circumstances, the applicant has not demonstrated that the sum of $16,183 or what part of it is in connection with the appeal.

11. In respect of the items of work covered by the Bill of Costs, some of them are clearly related to either the caveat proceedings or HCCA 2054 of 2012, such as revising the Affidavit by Administrator (page 1, 1^st item) and communications with the Probate Registry (page 1, 2^nd item and page 2, last item). The costs for these items fall outside the costs order in question.

12. There are also some items in the Bill of Costs which are costs between solicitors and client and do not fall within the ambit of party-and-party costs, such as the solicitors’ letter to the applicant to chase for settlement of legal costs (page 3, 2^nd last item) and the work in connection with the notice to act in person (page 4, 3^rd and 5^th items).  The respondent should not be liable for the costs of these works.  

13. Having regard to the matters set out in paragraphs 11 and 12 above, and adopting a broad brush approach as the Bill of Costs has not set out the amount for each item, we will reduce the amount of $24,194 to $20,000.  

14. Accordingly, we vary the amount of the applicant’s costs of the appeal to be paid by the respondent to $20,000.