GLOBAL MEDICAL SOLUTIONS HONG KONG LTD v. MA MAN LUNG

HCA 1560/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1560 OF 2011

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DECISION

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Introduction

1.  This is an appeal of Mr Ma against the order of Master J Wong dated 12 January 2016 (“the Order”) whereby the master dismissed his application for an extension of time to review taxation by way of his summons dated 26 October 2015 (“the Summons”).

Background facts

2.  I shall deal with this appeal by way of rehearing the Summons. However, I should first dispose of Mr Ma’s application for leave to adduce fresh documentary evidence.

3.  Mr Ma accepts that he could have produced those documents before the master and he offers no explanation for his failure to do so. Mr Ma does not explain to me about the materiality of those documents. He is unable to make out any special grounds for admission of them pursuant to RHC O.58 r.1(5). Thus, I refuse to grant him to adduce them for the purpose of this appeal. 

4.  The material taxation hearing (“the Hearing”) took place before Master J Wong on 5 February 2013. The taxation concerned a number of costs orders made against Mr Ma in the present action. Suffice it to say, Global Medical Solutions Hong Kong Ltd (“GMS”) was granted final judgment with costs against Mr Ma on 19 January 2012.

5.  Mr Ma acting in person attended the Hearing. GMS instructed Mr Chan, a law costs draftsman of Billy Chan & Co to appear on its behalf at the Hearing.

6.  Prior to the Hearing, on 8 June 2012, GMS served the relevant documents including a Bill of Costs on Mr Ma with a view to taxation. On 4 October 2012, Mr Ma filed his List of Objection to the Bill of Costs.

7.  At the Hearing, Master J Wong made an order (“the Taxation Decision”) and allowed GMS a total sum of HK$263,961 (“the Total Sum”) as his costs after taxation.

8.  On the following day, Angela Wang & Co., solicitors for GMS, sent to Mr Ma a letter by post at his two addresses (“the Letter”) setting out a breakdown of the Total Sum. Mr Ma was demanded to sign on the Letter to indicate his confirmation within 7 days thereafter.

9.  On 16 September 2015, GMS served on Mr Ma an Allocatur dated 14 September 2015. The amount stated in the Allocatur is HK$263,011.00. Mr Ma was unhappy with the Allocatur and applied by the Summons for a review out of time.

10.  RHC O.62 r.33(2) provides that an application for review of a taxing master’s decision may be made at any time within 14 days after the conclusion of the taxation in which that decision was made or such shorter period as may be fixed by the taxing master. Accordingly, Mr Ma’s application for review by the Summons was late for more than 2.5 years.

11.  Master J Wong heard the application on 12 January 2016 and by the Order he refused Mr Ma’s application.

12.  I note that there is a small difference in the amounts respectively stated in the Letter and the Allocatur. Mr Birks, for GMS, is unable to give an explanation for the difference. However, I do not find this to have any bearing on the Summons.

The Appeal

13.  Concerning the Summons, the issues are whether Mr Ma has an acceptable explanation for the delay and whether he has a reasonable chance of a successful review of the Taxation Decision.

14.  The focus of Mr Ma’s appeal is that he had not heard from GMS for 2.5 years after the Hearing before he was served with the Allocatur. He maintains that he had not received the Letter. Mr Ma finds this unfair as he had already missed the chance to apply for review when he received the Allocatur more than 30 months later.

15.  Mr Ma further complains that GMS has failed to file a notice of intention to proceed before it served on him the Allocatur after a year’s inaction pursuant to RHC O.3 r.6.

16.  I see no merit in either of his contentions. First, regardless of whether Mr Ma actually received the Letter, he was present at the Hearing and the master made the Taxation Decision there and then with reasons orally given. The Taxation Decision having been made by the master at the Hearing, the time for an application for review started to run therefrom without the Allocatur: RHC O.62 r.33(2). There is no reason why he should wait for the Allocatur to apply for review. This is only a lame excuse, which I cannot accept.

17.  Mr Ma further tells this court that he had been occupied with the enforcement proceedings against him by GMS. I do not think this can provide an acceptable explanation for the substantial delay.

18.  His reliance on RHC O.3 r.6 is also misplaced. The service of the Allocatur cannot be within the meaning of an interlocutory proceeding under the rule.

19.  In the absence of a plausible explanation for the protracted delay, I am unable to exercise my discretion to grant Mr Ma an extension of time to apply for review of the Taxation Decision.

20.  On the other hand, Mr Ma does not begin to explain to my satisfaction that his intended review would yield any fruit. I am unable to find any merit at all in his intended review.

Conclusion and Order

21.  In the premises, the Summons is bound to be rejected. Thus, I should uphold the Order and dismiss the appeal of Mr Ma.

22.  Costs should follow the event. I make an order nisi that Mr Ma should pay forthwith GMS its costs of and occasioned by his appeal, to be taxed if not agreed.