BRAND FARRAR BUXBAUM LLP v. SAMUEL-ROZENBAUM DIAMOND LTD

HCA5191/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 5191 OF 1998

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JUDGMENT

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1. The matter before me is an appeal against a Master's decision delivered on 4 September last, not as to the order then made in which he dismissed an application for an adjournment, but as to the costs then ordered, which essentially was an order in favour of the successful party as to a fixed amount, as ordered, relative to the total time taken by counsel for the successful party during the hearing of the application for adjournment and the subsequent date when judgement was delivered.

2. It is not appropriate for me to delve into the background in any detail. Suffice to say that the plaintiff is, or at least was at the outset, an American legal partnership, and the defendant, a client of that partnership. Joined as a party called a claimant, is a Hong Kong based company.

3. There have been a number of findings and judgments, both interlocutory and final, in these proceedings. Suffice to say that the matter material to this appeal is that on 23 August last, there was set down an application by the claimant for leave to execute against an individual, an actual former partner of the plaintiff firm.

4. When the matter came on for hearing with two hours allowed for it, an application for an adjournment was made for and on behalf of the plaintiff firm and the individual therein, the subject of the application for personal attachment. The Master heard argument, not only in support of and against the preliminary application, but also a substantive argument as to part at least in respect of the substantive issue that was before him.

5. In the event, the two hours was used up without the preliminary issue having been dealt with and the Master, reserving his position, came back on 4 September and delivered a pre-written judgment in which he found against the plaintiff and the individual partner on the application for an adjournment. He then proceeded forthwith, without inviting an address by either side, to make the costs order that is now complained of and is the subject of this appeal.

6. Opposing the appeal, Mr Maurellet for the claimant invites me to dismiss the appeal upon the basis that the issue is straightforward; there was an application for an adjournment and the application was declined and the Master simply made the usual costs order following the event.

7. Mr Surman, for the appellants, submits that the costs order was premature. What, practically speaking, took place was that there was an application for an adjournment. Interspersed within the submissions in support of and in opposition to that, submissions were made concerning the substantive issues that were before the court, and the matter concluded, as it were, part-heard with the remaining matters to be dealt with on some future date. Indeed, at the conclusion of the judgment delivered on 4 September, the Master gave a direction that the summons be adjourned to a future date, being 20 October next.

8. There are various issues that have been raised by Mr Surman in his skeleton submissions and before me this morning. But that which I find most pertinent is that the Master, having delivered judgment, moved straight into an order for costs without invitation to either side to address him on the costs, notwithstanding that he was delivering judgment and not handing it down.

9. This seems to me to be not only an unusual course but an irregular one, particularly as it seems there are issues that could have been raised before him by the unsuccessful parties which may have resulted in an alternative course of action.

10. That, it seems to me, is sufficient ground for me to allow the appeal. This being a rehearing, I am entitled, as I propose, to make an order that I think should have been made by the Master in all the circumstances; that is to reserve the costs of the hearings of 23 August and of 4 September to be dealt with by him at the conclusion of the hearing scheduled for 20 October. I therefore allow the appeal and substitute that order for the Master's order as to costs made.