PETER MAN HO LAYE v. TAM MA LAI AND ANOTHER

PETER MAN HO LAYE v. TAM MA LAI AND ANOTHER

Apply the Medway/Saner principle: the DLA is liable only for that part of the plaintiff's costs which were incurred by reason of the counterclaim. The taxing master must determine what incremental costs were caused by the counterclaim by looking to substance and how the trial was conducted; apportionment by fixed percentages or paragraph counts is inappropriate. On the facts, the bulk of trial time and costs were devoted to the counterclaim so those costs of defending trust and adverse possession are recoverable from the DLA.

Citation
PETER MAN HO LAYE v. TAM MA LAI AND ANOTHER
Parties
Plaintiff: Plaintiff; 1st Defendant: Madam Tam; 2nd Defendant: 2nd Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 February 2012
Case Number
HCA1780/2009
Procedural Posture
Possession Action With Counterclaim (title, Resulting Trust and Adverse Possession); Application Under Order 113 Rules 1 3 / Chambers Decision on Costs and Summons for Taxation (post Judgment Costs Allocation)
Outcome
Plaintiff's costs of defending issues on trust and adverse possession are part of the counterclaim recoverable from the Director of Legal Aid; proposed apportionment requests dismissed; plaintiff awarded costs of the summons; defendants entitled to legal aid taxation of their own costs.
Legal Topics
Adverse Possession, Resulting Trust, Costs Taxation, Apportionment of Costs, Director of Legal Aid Liability
Source Language
EN
Property Law Civil Procedure Legal Aid Law Costs Law Adverse Possession Resulting Trust Costs Taxation Apportionment of Costs +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2
Sign in to unlock

Parties

Plaintiff

Plaintiff

Madam Tam

1st Defendant

2nd Defendant

2nd Defendant

Procedural Posture

Possession Action With Counterclaim (title, Resulting Trust and Adverse Possession); Application Under Order 113 Rules 1 3 / Chambers Decision on Costs and Summons for Taxation (post Judgment Costs Allocation)

Legal Issues

  1. 1 Whether the Director of Legal Aid (DLA) is liable for the plaintiff's costs of the claim or only those costs attributable to the counterclaim under s16C(1)(b)(ii) Legal Aid Ordinance
  2. 2 Proper legal test for apportioning or attributing costs between claim and counterclaim (treatment of common costs)
  3. 3 Whether proposed fixed percentage apportionments or paragraph-count methods are acceptable

Ratio Decidendi

Apply the Medway/Saner principle: the DLA is liable only for that part of the plaintiff's costs which were incurred by reason of the counterclaim. The taxing master must determine what incremental costs were caused by the counterclaim by looking to substance and how the trial was conducted; apportionment by fixed percentages or paragraph counts is inappropriate. On the facts, the bulk of trial time and costs were devoted to the counterclaim so those costs of defending trust and adverse possession are recoverable from the DLA.

Court Disposition

Plaintiff's costs of defending issues on trust and adverse possession are part of the counterclaim recoverable from the Director of Legal Aid; proposed apportionment requests dismissed; plaintiff awarded costs of the summons; defendants entitled to legal aid taxation of their own costs.

Orders

  • Paragraph 1 of the summons granted: plaintiff's costs on defending trust and adverse possession are recoverable from the Director of Legal Aid and to be taxed in accordance with Medway principles
  • Paragraphs 2 and 3 of the summons concerning apportionment dismissed