THE INCORPORATED OWNERS OF KAI TAK GARDEN (CHOI HUNG ROAD) v. WOO TAK YAN AND ANOTHER

LDBM 330/2014-1 & LDBM 13/2015-1
(Heard Together)

[2022] HKLdT 61

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 330 OF 2014

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IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 13 OF 2015

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DECISION

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Introduction

1.  By 2 summonses both filed on 8 November 2021, the 1^st respondent applied to review the taxing master’s decision made on 17 September 2020 in respect of the applicants’ bills of costs in LDBM 330/2014 (“the 1^st bill”) and in LDBM 13/2015 (“the 2^nd bill”) both filed on 29 May 2019.

2.  The 1^st respondent is conversant in English. All of his documents are written in English.

Preliminary issue

3.  Before going into the review proper, it is necessary to deal with an issue raised by Mr Vincent Chong, who appears for the applicant, the receiving party.

Procedural history

4.  The following procedural facts are relevant:

Date	Step taken
29/5/2019	Filing of the 2 bills
6/12/2019	Taxation of the 2 bills
19/12/2019	The 1st respondent applied for review of the taxing master’s decision
16/9/2020	Hearing of the taxation review before the taxing master
17/9/2020	The 1st respondent wrote to court (“the 1st letter”)
20/10/2020	The 1st respondent wrote to court (“the 2nd letter”)
25/10/2021	Taxing master’s certificates were signed
8/11/2021	The 1st respondent filed the summonses to apply for review before a judge

The applicant’s submission on the preliminary issue

5.  Mr Chong submitted that according to Order 62 rule 35 of the Rules of the District Court (“RDC”), if any party is dissatisfied with the decision of taxing master for any item allowed or disallowed in part, that party may apply to a judge for an order to review only if that party requested that officer to state the reasons for her decision within 14 days after the taxing master’s certificate is signed, ie by 8 November 2021. The applicant has not received any such decision from the taxing master which is the result of the 1^st respondent’s failure to make such request in time.

6.  Relying on Bank of China (Hong Kong) Ltd v Villa King Enterprises Ltd, HCMP 5727/1999 & HCA 15005/1999, 26/10/2004, unreported, the applicant submitted that the 1^st respondent’s application for review should be refused.

The 1^st respondent’s reply

7.  At the hearing, the 1^st respondent replied that on 17 September 2020, he had asked the taxing master how to raise his objection. He said the taxing master told him that he might apply for the transcripts. He therefore applied for the transcripts of the taxation review.

Discussion on preliminary issue

8.  Order 62 rule 34(4) of RDC provides:

“(4) A taxing master who has reviewed a decision in respect of any item shall issue his certificate accordingly and, if requested to do so by any party to the proceedings before him, shall state in his certificate or otherwise in writing by reference to the objections to that decision the reasons for his decision on review, and any special facts or circumstances relevant to it. A request under this paragraph must be made within 14 days after the review or such shorter period as may be fixed by the taxing master.”

9.  Order 62 rule 35 of RDC provides:

“(1) 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 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 if, but only if, one of the parties to the proceedings before the taxing master requested that officer in accordance with rule 34(4) to state the reasons for his decision in respect of that.

10.  Order 62 rule 35(1) requires the party seeking a review before a judge to apply to the taxing master the reasons for decision on review pursuant to rule 34(4). Rule 34(4) requires that such request to be made within 14 days after the review.

11.  The 1^st letter reads:

“LDBM 330/14 & 13/15

Proceedings regarding the appeal against application of 10.12.19 on variation of costs order (6.12.19 taxation) & review of taxation (6.12.19 hearing)______________________________

Further to tele-con over the counter today with your goodself, I was advised to write in for your necessary attendance on the subject above.

As such, please proceed accordingly and advise me of any proceedings associated.”

12.  It seems clear that the 1^st respondent was not applying for the written decision of the taxing master on review but was attempting to seek advice from the court registry.

13.  The 1^st letter was replied by another master on 28 September 2020 as follows:

“(1) Subject to Order 62, rule 35 of the Rules of the District Court, application for review of a taxing Master’s decision in respect of any items shall be made at any time within 14 days after the taxing Master’s certificate in respect of that item is signed.

(2) The Paying Party is advised to seek independent legal advice in respect of taxation proceedings, if necessary.”

14.  Apart from stating the time within which the application for review should be made under Order 62 rule 35, the learned master has rightly advised the 1^st respondent to seek independent legal advice. Indeed, the learned master did not regard the 1^st letter as an application for the reasons for decision of the taxing master on review.

15.  The 1^st respondent said that he was told by the taxing master to apply for the transcripts of the taxation review. However, the transcripts of the hearing on 17 September 2020 bear no such record.

16.  The 2^nd letter only stated the grounds of the review short of any request for the reasons of the decision of the taxing master on review.

17.  I do not accept that the 1^st respondent has ever made a request to the taxing master for the reasons of her decision on review pursuant to Order 62 rule 35(1) of RDC.

18.  The transcripts contain the oral reasons for decision of the taxing master which are brief reasons only. The Court of Appeal in Lam and Lai Solicitors v Ho Chun Yan Albert [2018] 2 HKLRD 127 in approving the approach in Chan Yin Na v Union Medical Centre Ltd [2011] 4 HKC 158 held that:

“On a review of a taxing master’s certificate under O62 r35, a judge did not conduct a taxation de novo and should not interfere with the Master’s decision, which was essentially a matter of discretion, save in limited circumstances: if the decision was shown to have been arrived at under a mistake of law, or in disregard of principles, or under a palpable misapprehension as to the facts, or plainly in reliance on irrelevant matters, or to be such as to fall outside the generous ambit within which reasonable disagreement was possible.”

19.  Hence, in a taxation review under Order 62 rule 35, the court has to consider whether the decision of the taxing master is arrived at under a mistake of law, or in disregard of principles, or under a misapprehension of facts, or relying on irrelevant matters. Without the full reasons of the taxing master, it is simply impossible for the court to make any determination in accordance with the principles.

20.  In Bank of China (Hong Kong) Ltd v Villa King Enterprises Ltd (supra), neither party had requested the taxing master to state his reasons. The court held that a final chance to review under Order 62 rule 35 can only arise if there is a situation when reasons have been given pursuant to a request so that the judge is in a position to look at the reasons and then to see whether the reasons are valid.

21.  In the premises, I am bound to refuse the 1^st respondent’s application for review.

22.  For the sake of completeness, however, I would briefly deal with the merits of the 1^st respondent’s review.

The 1^st respondent’s grounds of review

23.  The 1^st respondent put forward the following grounds of review, namely, that the taxing master erred in:

(1)  considering the costs taxed against the evidence, that is the payment receipt/record;

(2)  considering the costs taxed not exceeded the payment paid in total instead of that of individual item;

(3)  considering the costs taxed be adjusted on the payment which was time barred under Cap 159;

(4)  considering the costs taxed based on a finding of fact or inference from the facts which is perverse or irrational, or there was no evidence to support it, or it was made by reference to irrelevant factors or without regard to relevant factors; and

(5)  taxing/reviewing particular items.

24.  In fact, the 1^st respondent is seeking to review the taxing master’s decision in items 52.1.1, 52.1.2, 52.2.1 and 52.2.2 in the 1^st bill and items 41.1.1, 41.1.2, 41.2.1 and 41.2.2 in the 2^nd bill.

Discussion

25.  The 1^st respondent complained that the amounts allowed had exceeded the amounts actually charged by the applicant’s solicitors.

26.  The 1^st respondent is basing his argument on two 3^rd interim bills both dated 19 November 2015 for the period from 16 September 2015 to 25 November 2015, which, in my view, is bound to fail.

27.  Items 52.1.1, 52.1.2, 52.2.1 and 52.2.2 in the 1^st bill and items 41.1.1, 41.1.2, 41.2.1 and 41.2.2 in the 2^nd bill covered the 2^nd stage of the proceedings from 14 September 2015 to 30 June 2016. During this period, the applicant’s solicitors had issued not just the 3^rd interim bills, but also 4^th, 5^th, 6^th, 7^th and 8^th interim bills in respect of both proceedings to the applicant which also contained services relating the above items. Therefore, the argument of the 1^st respondent is based on a false premise.

28.  A cursory reading of the transcripts of the review hearing before the taxing master shows that the taxing master had also taken note of the other interim bills in her oral reason.

29.  The 1^st respondent therefore has failed to demonstrate any error of the taxing master.

30.  In the written submission, the 1^st respondent also sought to review items 31.1.3, 31.2.3, 52.1.3 and 52.4.3 of the 1^st bill and items 19.1.3, 19.2.3, 41.1.3 and 41.4.3 of the 2^nd bill. At the hearing, the 1^st respondent confirmed that those items were not the subject of review before the taxing master. They are therefore not subject to review under Order 62 rule 35(1) of RDC.

Conclusion and order

31.  By reasons of the aforesaid, I see no merits in the 1^st respondent’s 2 summonses and would dismiss each of them accordingly.

Costs

32.  Costs to follow the event. I make a costs order nisi that the 1^st respondent shall pay the applicant the costs of this review, to be taxed if not agreed.

33.  In the absence of any application for variation by summons within 14 days from the date of this decision, the costs order nisi shall become absolute.