POOSAALA RAM PRASAD v. THE HONG KONG AND SHANGHAI BANKING CORPORATION LTD

CACV 466/2021

[2025] HKCA 74

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 466 OF 2021

(ON APPEAL FROM HCA NO 279 OF 2021)

____________

BETWEEN

____________

_______________

D E C I S I O N

_______________

INTRODUCTION

1.  This is the hearing of the summons taken out by the plaintiff (“P”) on 26 August 2024 for a review of the Taxation Review Decision and Certificate issued by Master S P Yip (“the Master”) dated 12 August 2024 (“Taxation Review Decision and Certificate”) under Order 62 rule 35 of the Rules of the High Court (“RHC”) (“the Review Application”).

2.  The taxation hearing was first heard by the Master on 3 June 2024. Upon an application taken out by P, the Master reviewed his decision on 10 July 2024 under Order 62 rules 33 & 34 of the RHC. Upon the written request of P, the Master issued the Taxation Review Decision and Certificate.

BACKGROUND

3.  Under Order 62 rule 35(1) of the RHC, any party who is dissatisfied with the decision of a taxing master to allow or to disallow any item in whole or in part on review under Order 62 rule 34, or with the amount allowed in respect of any item by a taxing master on any such review, may apply to a judge for an order to review the taxation as to that item or part of an item.

4.  Under Order 62 rule 35(4), unless the judge otherwise directs, no further evidence shall be received on the hearing of an application under this rule and no ground of objection shall be raised which was not raised on the review by the taxing master.

5.  Hence, the Review Application is limited to what was reviewed by the Master at the hearing on 10 July 2024 and set out in the Taxation Review Decision and Certificate.

6.  The defendant (“D”) opposed to P’s Review Application.

7.  D’s position is that the matters raised in P’s Review Application are (i) without merits and/or (ii) irrelevant.

8.  D’s arguments have been succinctly summarized by its solicitors in the written submissions lodged with the Court on 25 October 2024 (“D’s Submissions”).

9.  P on the other hand has filed his written submissions with the Clerk of the Court’s Office (Appeals Registry) in the afternoon of 28 October 2024 only (“P’s Submissions”).

10.  In P’s Submissions, he has basically reiterated the history and the events leading up to the review of the taxation decision made by the Master in August 2024. It does not contain anything new which he has not mentioned in his affirmation filed for the purpose of the Review Application.

P’s August Affirmation

11.  On 26 August 2024, P filed and served on D an affirmation and 17 exhibits without the leave of the Court (“P’s August Affirmation”). P has not served any further documents on D in respect of the Review Application save for P’s Submissions which was filed with the Court less than 48 hours before the Review Application hearing and after D had filed D’s Submissions.

12.  I agree with D that the body of P’s Affirmation contains no real substance. It appears that the purpose of the filing of P’s Affirmation is to produce the 17 documents exhibited thereto only. They are:

(a) Exhibit 1 is the Taxation Review Decision and Certificate;

(b) Exhibit 2 appears to be P’s submissions: (i) referring to some facts “pursuant to” D’s without prejudice letter dated 3 May 2024; and (ii) attempting to supplement P’s grounds of objections to raise new issues such as “without prejudice” correspondence (“P’s Exhibit 2”);

(c) Exhibits 3-7 appear to be articles and case authorities in connection with “without prejudice” correspondence;

(d) Exhibits 8-10, 12-14 are court documents in these proceedings; and

(e) Exhibit 11, 15-17 are letters or documents sent by D’s former solicitors or D’s present solicitors to P.

DISCUSSION

Scope of the Review Application

13.  In §§5-10 of the Taxation Review Decision and Certificate, the Master set out the items under his review. The key document was P’s affirmation in support of his application to taxing master for review filed on 17 June 2024 (“P’s June Affirmation”). A full copy of P’s June Affirmation, including a 2-page document P referred to as “Review of Taxation Application of the Plaintiff” (“AA”), is enclosed with these submissions.

14.  Out of the items set out in AA, and after considering two rounds of written submissions of P in July 2024, the Master was of the view that P only stated the nature and grounds of objections for two items in compliance with Order 62 rule 33(3) of the RHC, namely, (i) undue delay and (ii) printing charges.

15.  Pursuant to Order 62 rule 33(3A) of the RHC, the Master dismissed all non-complying items in AA.

16.  I accept D’s Submissions that the Master was correct in dismissing all non-complying items in AA. In my judgment, the present Review Application should therefore be limited to (i) Undue Delay and (ii) Printing Charges, being the only two grounds of objection raised by P on the review by the taxing master.

Undue Delay

17.   P’s first ground of objection is set out at page 2 of AA. P’s position is “The Plaintiff submitted for taxation under Order 62, rule 22(7)(a) within period of limitation. There is no delay in filing taxation application.”

18.  The Master's reasons for maintaining his decision on the issue of Undue Delay is set out in §§11-20 of the Taxation Review Decision and Certificate.

19.  In §19, the Master explained that he found P’s delay in filing his bill of costs was undue. The Master therefore disallowed interest for P’s taxed costs from 24 July 2023 (being 4 days after D had rejected P's demand for payment of taxation costs) to 3 March 2024 (being one day before the filing of P’s bill of costs) with both days inclusive. I cannot find any fault with the Master’s decision on this.

20.  While P’s Exhibit 2 is not completely understood, it appears pages 1-9 of P’s Exhibit 2 and the top half of page 10 (up to the paragraph above “PRINTING CHARGES”) concerns the issue of Undue Delay.

21.  It is apparent that P is attempting to rely on some without prejudice communications between the parties in support of his Review Application. In this regard, D has specifically drawn the attention of this Court to the following matters:

(a) It is to take note that, during the call-over hearing on 16 April 2024, Master J Wong has expressly informed P that the particulars of the without prejudice communications between the parties should not be referred to in court;

(b) The issue of the relevant without prejudice communications between the parties has not been (as it should not have been) put forward for the Master’s consideration during the taxation hearing on 3 June 2024. It follows that these communications should also not be considered in the present Review Application; and

(c) In any event, the interest disallowed for P’s taxed costs was from 24 July 2023 to 3 March 2024. It is not understood how the without prejudice communications between the parties after this period would have any relevance to the interest disallowed.

22.  I entirely agree with the observations made by D’s solicitors as listed out above. In this regard, in my view, the Master has clearly explained his reasoning in §§16-18 of the Taxation Review Decision and Certificate why the interest was disallowed from 24 July 2023 to 3 March 2024. I agree with the Master that the delay of more than 7 months to file a proper bill was caused by P’s own fault. As such. I do not find anything wrong with Master's decision on this issue.

Printing Charges

23.  P’s second ground of objection is also set out at page 2 of AA. P’s position is “In taxation hearing from the Plaintiff’s Bundle the Hon’ble Court allowed only 249 pages. But the Hon’ble Court of Appeal in CACV466 of 2021 allowed on 07 December 2022 Defendant’s First hearing Bundle 302 pages @4 HKD per page.”

24.  The Master’s reasons for his decision on the issue of Printing Charges is set out in §§21-25 of the Taxation Review Decision and Certificate.

25.  It appears P’s submissions in this regard is set out at pages 10-11 of P’s Exhibit 2 under the headings “PRINTING CHARGES” and “PRINTING CHARGES FOR BUNDLES”.

26.  In §24 of the Taxation Review Decision and Certificate, the Master was of the view that the undisputed fresh evidence shows there were 302 pages in the hearing bundle. The Master therefore adopted 302 pages to calculate the printing charges, at $4 per page as the copying costs in respect of the first bundle and at $1 per page for the subsequent four bundles.

27.  P asserts in P’s Exhibit 2 that printing charges are different from photocopy charges. I do not understand what point P is trying to make here. To the extent P is of the view that printing charges awarded should exceed the scale cost, I agree with D’s Submissions that this has been totally misconceived by P.

28.  P also took issue with the 2/3 discount applied by the Master in respect of the printing charges pursuant to Order 62 rule 28A(2). In this regard, rule 28A(2) provides that “The amount allowed in respect of any item shall be such sum as the taxing master thinks fit”.

29.  In my view, it is clear that the Master has the discretion to award costs to P under this item as he thinks fit. Again, I see nothing wrong with his decision on this.

CONCLUSION

30.  For the above reasons, I do not find any merits in P’s Review Application. As such, I will uphold the Taxation Review Decision and Certificate made by the Master dated 12 August 2024 and order that the costs of and occasioned by the Review Application be to D, such costs to be summarily assessed at HK$40,000 to be paid forthwith by P.