WONG CHI CHING v. BOCOM INTERNATIONAL HOLDINGS CO LTD

HCA 362/2014

[2018] HKCFI 227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 362 OF 2014

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D E C I S I O N

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1.  By an order of DHCJ B Chu (as Her Ladyship then was) made on 23 April 2015 (“Order”), the Plaintiff’s claims against the Defendant in this action was struck out, and the action was dismissed, with costs of the action and of the Defendant’s summons for striking out (issued on 23 July 2014) to be paid by the Plaintiff to the Defendant.

2.  The Defendant’s bill of costs filed on 17 June 2016 (“Bill”) was taxed by the Master on 22 February 2017.  The Plaintiff then applied for a review of the Master’s decision on the taxation, which review was heard on 13 July 2017.  A decision of the Master on his review was handed down on 18 September 2017 (“Decision”).  The Plaintiff seeks now to appeal against that Decision, by filing a Notice of Appeal under Order 58 RHC.

3.  As the Defendant rightly pointed out, the proper procedure is for the Plaintiff to apply for a judge to review the Master’s decision on the taxation, under Order 62 rule 35 RHC.  This provides that “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”.

4.  The defendant was prepared for the Court to treat the Plaintiff’s Notice of Appeal as an application for review under Order 62 rule 35, and the hearing on 31 January 2018 proceeded on that basis.

5.  It is clear that under a review pursuant to Order 62 rule 35, the judge is not required to conduct a taxation de novo, but only considers the reasons for the taxing master’s decision, to ascertain whether or not the taxing master erred in principle, took into consideration irrelevant matters, or failed to take into account relevant matters (Tin Wan Tung v Wong See Yin [2017] HKCFI 66 (HCA 167/2011, 17 January 2017); Chan Yin Na v Union Medical Centre Ltd [2011] 5 HKC 158).

6.  In China Property Development (Holdings) Ltd v Mandecly Ltd [2008] HKCFI 553 (HCMP 436/2005, 7 July 2008), the Court pointed out that the starting point is that the Court will not generally interfere with the decision of a taxing master on a question relating to fact, or the amount of costs, subject to the following exceptions:

(1)   a question of principle is involved;

(2)   the taxing master has not had reasonably sufficient material before him;

(3)   the taxing master has taken into consideration irrelevant matters;

(4)   the taxing master has not taken into account relevant matters; or

(5)   the taxing master acted upon a wrong principle, or adopted the wrong approach.

7.  In this case, the Master delivered his Decision on the Plaintiff’s application for review on 18 September 2017, in which he set out all the reasons for his dismissal of the review.  As Counsel for the Defendant emphasized, the review proceedings before the judge is not an occasion for the Plaintiff to reargue the matters already argued at the hearing before the Master.  Under Order 62 rule 35(4), no further evidence shall be received on the hearing of an application to a judge for review, and no ground of objection shall be raised which was not raised on the review by the taxing master - unless the judge otherwise directs.

8.  The arguments and submissions made by the Plaintiff at the hearing of the review focused on various grounds.  First, it was argued that at the taxation hearing, the Master wrongly rejected her application to rely on a Revised List of Objections (“Revised List”) to the Bill.

9.  The Master explained in the Decision that the Revised List was filed without the leave of the Court 4 weeks before the taxation hearing, and the Plaintiff’s application for leave was refused on the ground that the Revised List raised substantial amendments and revisions, which the Defendant had to deal with, and that substantial prejudice would be caused to the Defendant, if leave was granted to the Plaintiff to rely on the Revised List, and the hearing would have to be adjourned.

10.  It was within the case management powers of the Master to disallow leave to the Plaintiff to file the Revised List.  He had exercised his powers and discretion on proper grounds, and I fail to see how it can be said that the Master had erred in principle, or that any ground existed to review his decision.  The Master further stated in his Decision that the costs and the work covered in items 9 to 11 of the Bill and as allowed by him were reasonable.

11.  Second, the Plaintiff disputed the Master’s indication that he would only consider documents on claims involving time “above 10 minutes”, and that claims involving “below 10 minutes” would be allowed. The Plaintiff argued that 60% of the total claims for work under the Bill involved time below 10 minutes.  She claimed that it was on that basis that she had agreed to various items of the Bills, but argued that the agreement should be set aside, and that the Master had erred in principle in “pre-allowing” all of the Defendant’s claims below 10 minutes without reviewing the supporting documents, which work she argued could have been unnecessary, improper, or duplicated.

12.  Considering the amount of the Bill, the time charged for the different work covered by the Bill, and the nature of the work described as involving less than 10 minutes (namely, the review of documents described in item 6 of the Bill, drafting, considering documents received and telephone calls made), the Master’s approach cannot be said to be disproportionate to the entire exercise of the taxation.  I do not agree that he had erred in principle in adopting his approach.

13.  Third, the Plaintiff argued that her agreement reached with the Defendant’s law costs draftsman on various items of the Bill should be set aside on the ground of her mistake, identified to be her error in believing that as officers of the Court, representatives of the Defendant were acting reasonably and properly in claiming for each of the items covered in the Bill, when it was not so, inter alia by reason of the fact, as discovered after the agreement, and as the Plaintiff maintains, that a hearing bundle referred to in item 33 of the Bill did not in fact contain “220 pages”, as represented.

14.  I reject the Plaintiff’s argument that her agreement with the Defendant not to dispute various items of the Bill can be set aside.  She relies on the general principle that a contract can be vitiated by mistake.  However, a unilateral mistake such as hers, as to the alleged basis or reason of her making the agreement, which is not known to the other party, is not a ground for setting aside.  I accept the Defendant’s argument, that the case of Pitt v Holt [2013] 2 AC 108 relied upon by the Plaintiff concerns the setting aside of voluntary dispositions and settlements, and does not apply to the case of a contract supported by consideration.  As stated in the Decision, the Master also found that there was no good reason to review or set aside the Plaintiff’s agreement, which was based on her own mistaken belief which was not induced by the Defendant.

15.  As for the Plaintiff’s reliance on the fact that item 33 of the Bill had been disallowed, in respect of the time and costs of considering and attending to documents provided by the Defendant to its legal advisors “from time to time throughout the proceedings”, involving 220 pages of documents, I accept the submissions of Counsel for the Defendant.  The mere fact of the Master disallowing this general item does not mean that the Master was wrong in allowing or deducting part of the costs of other items of the Bill, concerning the review of documents or the work done by the legal representatives, which items the Master had considered and given his reasons for allowing or deducting the time and costs involved. 

16.  The Plaintiff pointed out that the hearing bundle of the striking out application only contained 158 pages, whereas item 33 referred to 220 pages of documents having been considered or attended to.  As Counsel rightly pointed out, item 33 covers documents provided “from time to time throughout the proceedings”, and was not confined to the documents contained in the hearing bundle for the striking out application.

17.  For all the other contested items referred to by the Plaintiff at the review before this Court, the Master had indicated in his Decision that he had considered the work carried out and the time engaged by the different legal representatives to have been reasonable, when he allowed the items in full, or with deductions.

18.  Having regard to all the above matters, and considering the Decision and reasons given by the Master, I do not see any basis for this Court to interfere with or to set aside any part of the Decision made by the Master, as to the items of work and amounts allowed, or to order any item of the Bill to be referred to another Master for taxation as the Plaintiff seeks.  The Master had not erred in principle, taken into consideration irrelevant matters, or failed to take into account relevant matters. 

19.  The application for review (or purported appeal) is dismissed, with costs to the Defendant.