LI SIN MAN SELINE and LEE SHU HANG (the executors of the estate of LEE SAI NAM, deceased) v. LI SHU CHUNG AND ANOTHER

LI SIN MAN SELINE and LEE SHU HANG (the executors of the estate of LEE SAI NAM, deceased) v. LI SHU CHUNG AND ANOTHER

The Master erred in issuing interim certificates because she had not actually taxed any part of the bills in the required item-by-item manner; Order 62 r 17(1) authorises interim certificates only for costs that have been taxed (i.e. decided item-by-item), and a taxing master cannot treat unobjected aggregate amounts across partially disputed items as 'taxed'. The appeals are allowed, the interim certificates are set aside and the matter of interim payment is remitted for proper consideration.

Citation
[2018] HKCFI 1365
Parties
Plaintiff (original Action); 3rd Defendant (counterclaim): Li Sin Man Seline; Plaintiff (original Action); Executor of Estate of Lee Sai Nam: Lee Shu Hang; 1st Defendant (original Action); Plaintiff (counterclaim): Li Shu Chung; 2nd Defendant (original Action): Li Joseph See Sun; 2nd Defendant (counterclaim) (withdrawn): Allied Ever Holdings Ltd; 4th Defendant (counterclaim); Receiving Party on Costs: Yuen Hing Enterprise Macao Commercial Offshore Limited; Original Receiving Party (deceased), Represented by Executors: Lee Sai Nam (deceased)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 June 2018
Case Number
HCA1711/2009
Procedural Posture
Civil Costs Taxation and Appeal / Interlocutory Appeal Against Master's Issuance of Interim Certificates (chambers Decision Remitting Part Heard Matters to Master)
Outcome
Appeal allowed in part; interim certificates set aside; remittal of part of summons to Master; costs orders made
Legal Topics
Interim Certificate, Order 62 R 17(1), Interim Payment on Account, Taxation of Costs, Inherent Jurisdiction, Procedural Fairness
Source Language
EN
Civil Procedure Costs Taxation Appeals Interim Certificate Order 62 R 17(1) Interim Payment on Account Taxation of Costs +2 more

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Parties

Li Sin Man Seline

Plaintiff (original Action); 3rd Defendant (counterclaim)

Lee Shu Hang

Plaintiff (original Action); Executor of Estate of Lee Sai Nam

Li Shu Chung

1st Defendant (original Action); Plaintiff (counterclaim)

Li Joseph See Sun

2nd Defendant (original Action)

Allied Ever Holdings Ltd

2nd Defendant (counterclaim) (withdrawn)

Yuen Hing Enterprise Macao Commercial Offshore Limited

4th Defendant (counterclaim); Receiving Party on Costs

Lee Sai Nam (deceased)

Original Receiving Party (deceased), Represented by Executors

Procedural Posture

Civil Costs Taxation and Appeal / Interlocutory Appeal Against Master's Issuance of Interim Certificates (chambers Decision Remitting Part Heard Matters to Master)

Legal Issues

  1. 1 Whether a taxing master may issue an interim certificate under Order 62 r 17(1) for amounts equal to parts of claimed costs that have not been the subject of item-by-item taxation
  2. 2 Whether amounts unobjected to in lists of objections across partially disputed items may be treated as 'taxed' for purposes of r 17(1)
  3. 3 Whether the court should order interim payment under its inherent jurisdiction without evidence from both sides

Ratio Decidendi

The Master erred in issuing interim certificates because she had not actually taxed any part of the bills in the required item-by-item manner; Order 62 r 17(1) authorises interim certificates only for costs that have been taxed (i.e. decided item-by-item), and a taxing master cannot treat unobjected aggregate amounts across partially disputed items as 'taxed'. The appeals are allowed, the interim certificates are set aside and the matter of interim payment is remitted for proper consideration.

Court Disposition

Appeal allowed in part; interim certificates set aside; remittal of part of summons to Master; costs orders made

Orders

  • Set aside the interim certificates issued by Master K Lo dated 17 January 2017
  • Remit paragraph 2 of the 2nd Summons back to the Master for proper consideration