IDMISTON LTD v. CROWNHALL INVESTMENTS LTD AND OTHERS

HCA007891/1987

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

1986, No.A7375

________

BETWEEN

MANDARIN RESOURCES CORPORATION LIMITED Plaintiff
AND

DAVID CHENG HENG SOON 1st Defendant
WEE LIANG KAI 2nd Defendant
CHEW KOK LIANG 3rd Defendant
(discontinued)
LUCKY MAN PROPERTIES LIMITED 4th Defendant
MARKLE LAND LIMITED 5th Defendant
(discontinued)
DAH YUNG LEASING PTE LIMITED 6th Defendant
(discontinued)
ASIATIC FORTUNE COMPANY LIMITED 7th Defendant
MALAYAN BANKING BERHAD 8th Defendant
(discontinued)
HO HUA MIN 9th Defendant

__________

1987, No.A7889

BETWEEN

IDMISTON LIMITED Plaintiff
AND

ASIAN MASTER ENTERPRISES LIMITED 1st Defendant
TOMAX INVESTMENTS CORPORATION 2nd Defendant

(By Original Action)

AND BETWEEN

ASIAN MASTER ENTERPRISES LIMITED 1st Plaintiff
(By Counterclaim)
TOMAX INVESTMENTS CORPORATION 2nd Plaintiff
(By Counterclaim)
AND

IDMISTON LIMITED 1st Defendant
(By Counterclaim)
MANDARIN RESOURCES CORPORATION LIMITED 2nd Defendant
(By Counterclaim)
LU’S (HONG KONG) FINANCE LIMITED 3rd Defendant
(By Counterclaim)

(By Counterclaim)

__________

1987, No.A7891

BETWEEN

IDMISTON LIMITED Plaintiff

AND

CROWNHALL INVESTMENTS LIMITED 1st Defendant
TOMAX INVESTMENTS CORPORATION 2nd Defendant
RICHBASE COMPANY LIMITED 3rd Defendant

(By Original Action)

AND BETWEEN

CROWNHALL INVESTHENTS LIMITED 1st Defendant
(By Counterclaim)
TOMAX INVESTMENTS CORPORATION 2nd Defendant
(By Counterclaim)
RICHBASE COMPANY LIMITED 3rd Defendant
(By Counterclaim)
AND

IDMISTON LIMITED 1st Defendant
(By Counterclaim)
MANDARIN RESOURCES CORPORATION 2nd Defendant
(By Counterclaim)
LU’S (HONG KONG) FINANCE LIMITED 3rd Defendant
(By Counterclaim)

(By Counterclaim)

__________

1987, No.A7892

BETWEEN

IDMISTON LIMITED Plaintiff
AND

ASIATIC FORTUNE COMPANY LIMITED 1st Defendant
TOMAX INVESTMENTS CORPORATION 2nd Defendant

(By Original Action)

AND BETWEEN

ASIATIC FORTUNE COMPANY LIMITED 1st Plaintiff
(By Counterclaim)
TOMAX INVESTMENTS CORPORATION 2nd Plaintiff
(By Counterclaim)
AND

IDMISTON LIMITED 1st Defendant
(By Counterclaim)
MANDARIN RESOURCES CORPORATION LIMITED 2nd Defendant
(By Counterclaim)
LU’S (HONG KONG) FINANCE LIMITED 3rd Defendant
(By Counterclaim)

(By Counterclaim)

_______________

Coram: Master Michael Jennings

Date:

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Review of Taxation by Taxing Master
Master’s Reasons for Decision

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1. The Bill of Costs in this taxation related to an interlocutory application by the 4th Defendant for security for costs to be providedby the Plaintiff. The Bill was taxed by me on 19th March, 1990.

2. On this Review, the Objections related entirely to the quantum of counsels’ fees allowed by me.

Fees of Mr. Ian Hunter, Q.C.

3. Mr. Hunter’s fees as originally claimed amounted to a total of $590,402.50. After taxation, the total was $545,999.50. The Objectionsfell into 2 categories, firstly that the fees allowed to Mr. Hunter were excessive, and secondly that I allowed a second brief feerather than merely a refresher.

Fees excessive – objections 2 – 9 & 11 & 12

4. I was referred on Review, as I had been on Taxation, to the case of Tai Hing Cotton Mill Ltd. v. Liu Chong Hing Bank Ltd. & Others in which Mr. Justice Rhind said that the proper measure of counsel’s fees is “what a hypothetical counsel capable of conducting thecase effectively would be content to take on the brief”. Dealing with the use of London counsel, the Judge said:

“Noreover, if it turned out in a particular case that the combined costs of brief fee, and expenses of travelling time, air faresand accommodation were about the same for London counsel as for the hypothetical Hong Kong counsel’s brief fee alone, then I wouldregard it as proper to allow London counsel’s expenses. On the view I take, it is artificial to consider overseas counsel’s brieffee in isolation from the other items of expenditure involved in getting him here. The court should look at the global figure ofoverseas counsel’s brief fee and other expenses for the purpose of comparing the price of overseas counsel with the hypotheticalcounsel.”

5. I approached the question of the fees to be allowed in respect of Mr. Hunter on the basis of that “global figure” test. At the review,I had before me 2 pieces of information not available to me at the taxation. On behalf of the Defendant, Miss Eu placed considerablereliance upon the fees charged by Mr. Charles Ching, Q.C., who appeared for the Defendant in the application. On the other hand,Mr. Cotterill for the Plaintiff was able to tell me about a Bill of Costs taxed against the Plaintiff in respect of another interlocutoryapplications. That Bill was dated May, 1988, and was the Bill of the 4th and 5th Defendants. The fees and expenses of Mr. Robin Potts,Q.C., a London silk, amounted to $546,893.12.

Two Brief fees – objection 11

6. There seems to be no firm rule whereby I should have disallowed the payment to Mr. Hunter of 2 brief fees, and only allowed 1 brieffee followed by a refresher. In my view, there are unusual cases where a second brief fee is proper, and Mr. Cotterill referred meto the case of Wakefield & Others v. Brown, Court of Common Pleas Vol.IX, p.410, which is an old authority supporting this view. Mr. Cotterill’s affidavit explained that inthe period between the delivery of the 2 briefs no less than 436 pages of affirmations had been added to the volume of the paperswhich counsel had to study before the eventual hearing of the application. In my view, this was an exceptional case where the secondbrief fee could properly be allowed.

7. I remain of the view that the fees of Mr. Hunter as taxed are proper.

Fees of Mr. Barrie Barlow

Objection 1

8. It is objected that Mr. Barlow’s brief fee of $25,000 (which I had taxed down from $30,000) was excessive for a 30 minute hearingbefore the laster. It was, however, agreed at the Review that the hearing had been set down for a full day, and just happened togo short on the day. I consider that the brief fee as taxed is proper.

Objection 13 & 14

9. It is objected that 2 brief fees of $60,000 (taxed down by me from $70,000 and $75,000 respectively) were excessive and that thesecond brief fee should have been replaced by a refresher. I allowed the second brief fee for the same reason as I allowed it forMr. Hunter. Having regard to the brief fees allowed to his leader, I still consider the brief fees allowed to Mr. Barlow are reasonable.

Objections 15, 16 & 17

10. It is objected that the 2 refresher fees of $20,000 each are excessive, the comment being made that they exceed those of Mr. Barlow’sleader (which were $19,125). I consider that having regard to the fee on the brief, the refresher fees are reasonable, and that thoseof Mr. Hunter are surprisingly low.

11. On Review, I declined to reduce further counsels’ fees as taxed.

(Michael Jennings)
Master

Representation: