CENTALINE PROPERTY AGENCY LTD. v. HO WING CHUNG JACKSON

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 13630 OF 1999

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JUDGMENT

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1. This is an application for refund of taxing fees pursuant to item 20a of the District Court Civil Procedure (Fees) Rules, Cap. 336 ("the Fees rules"). The substantive hearing on taxation is scheduled for today. Two days ago, a consent summons was filed indicating that the parties have settled. The Consent Summons asked for the "said Appointment to Tax" (i.e. 18th August 2000) to be withdrawn. Paragraph 3 stated that "the taxing fee paid by the Plaintiff be returned to the Plaintiff". I indicated yesterday that I was only prepared to order refund of 50% of the taxing fee. The Plaintiff disagreed, hence this application.

The Relevant Rules

2. Rule 2 of the Fees Rules provides that "the fees specified in the Schedule shall be payable in respect of all proceedings taken in any action or matter whatsoever in the Court whenever commenced, save where express provision is made by any other enactment in respect of any particular form of proceedings."

3. Rule 6 of the Fees Rules provides that "the Registrar may reduce, remit or defer payment of any fee specified in the Schedule as he may think fit in any particular case and shall, in every case where he exercises this power, endorse on the relevant document a note of such reduction, remission or deferment and of the reason therefor."

4. Item 20a of the Schedule provides for the fees payable on a taxation of costs: "Processing of a bill of costs which is withdrawn less than 7 days before the appointment for taxation ...... 10% of the taxing fee which would be payable if the bill was to be allowed in full or $1,000 whichever is the less."

The Plaintiff's Case

5. Mr. Chung for the Plaintiff argues that his case is on all fours with item 20a. Payment of taxing fees is statutory and does not involve discretion of the Registrar. Rule 6 involves discretion of the Registrar. Even so, the Registrar can only reduce the statutory fees but cannot order payment of taxing fees in excess of the statutory rate. He thus seeks refund of 90% of the taxing fees.

6. I agree with Mr. Chung on his legal propositions. However, he is unable to find anything which defines the term "appointment for taxation" in item 20a as meaning "the substantive hearing of the taxation". He claims that "traditionally", the term means the substantive hearing. He is unable to tell me when that tradition arose and its terms.

Meaning of Appointment for Taxation

7. "Appointment for Taxation" is not defined in the Fees Rules nor in the Rules of the District Court. However, Order 62, rule 21(1) provides that "a party entitled to require any costs to be taxed shall file in the Court his bill of costs and shall obtain from the taxing master an appointment to tax."

8. Under sub-rules (4) and (4A), costs specified in the notice of provisional taxation shall be allowed unless, within 14 days after that notice is served on him, any person entitled to be heard on taxation applies to the taxing master for an appointment to tax.

9. Under sub-rule (6), "if a bill of costs is withdrawn less than 7 days before the appointment for taxation, a fee shall be payable by the party who withdraws the bill".

10. Rule 21 makes no mention of any adjourned hearings for substantive taxation. It is clear from the context of rule 21 that "the appointment to tax" means the call-over hearing. In fact, that is a construction adopted by the Plaintiff in the Consent Summons and the bill of costs which is entitled "APPOINTMENT TO TAX (CALL OVER)". Item 20a specifies the fees that are payable if the bill of costs is withdrawn before that call-over hearing. That item is no longer applicable after call-over. If any party wants to seek a reduction of the taxing fees between the call-over and the substantive hearing, that is a matter for the discretion of the Registrar under rule 6 of the Fees Rules. Any 'tradition" or "practice", if ever existed, must not contravene the express provisions in the Rules.

Exercise of Discretion Under Rule 6

11. The Court encourages parties to settle on the question of costs and to do it as soon as possible. Reduction of taxing fees provides an incentive to do so. Fees in item 20a are levied to account for the administrative costs of the Court before the call-over. After call-over, the court has its own work to do. Parties must not under-estimate the amount of work done by the court in preparation of the substantive taxation hearing. In this case, my judicial clerk has sorted out the papers and the objections even before the Consent Summons was filed. Sometimes, the taxing master may have already read the court file and taxation bundle filed. However the court still encourages the parties to settle even after the call-over. How soon afterwards do they settle is one of the factors influencing the taxing master's discretion under rule 6. An early settlement which enables the court to use its time for hearing other cases tips the scale in favour of the applicant. In the present case, even if the Consent Summons was approved 2 days ago, the court' diary cannot be utilised for other cases at such short notice. Mr. Chung has mentioned that if I do not allow reduction of the taxing fees as sought, that may substantially affect the agreement reached between the parties. That is regrettable but parties cannot by consent usurp the discretion of the Registrar. Nor is the fact that they would not have settled but for the understanding that taxing fees will be waived relevant to the exercise of the court's discretion. Considering the work done by the Court, the short notice of settlement and with a view to encourage parties to settle before the substantive hearing, I therefore exercised my discretion to refund 50% of the taxing fees.

12. I have the parties' consent to circulate this judgment. Hopefully, this judgment will erase any doubts on "tradition" or "practice" of the court as to refund of taxing fees.