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					由此


A                                                                     A


B                                               HCA 1212/2002         B


C                  IN THE HIGH COURT OF THE                           C

         HONG KONG SPECIAL ADMINISTRATIVE REGION
D                                                                     D
                   COURT OF FIRST INSTANCE
E                    ACTION NO. 1212 OF 2002                          E

                          ____________
F                                                                     F
     BETWEEN
G                                                                     G
               SUN LEGEND INVESTMENTS LIMITED             Plaintiff
H                                                                     H
                               and
I                                                                     I
                      HO YUK WAH, DAVID           1st Defendant
J                     HO YUK KUEN, JADE           2nd Defendant       J


K                    CHAN MAN HO, BRIAN           3rd Defendant       K


L
                   DAVID Y W HO & CO (a Firm)     4th Defendant       L

                        (By Original Action)
M                         ____________                                M


N    AND BETWEEN                                                      N


O                     HO YUK WAH, DAVID             1st Plaintiff     O

                      HO YUK KUEN, JADE             2nd Plaintiff
P                                                                     P

                     CHAN MAN HO, BRIAN             3rd Plaintiff
Q                                                                     Q
                                                     th
                   DAVID Y W HO & CO (a Firm)       4 Plaintiff
R                                                                     R

                               and
S                                                                     S

               SUN LEGEND INVESTMENTS LIMITED     1st Defendant
T                                                                     T


U                                                                     U


V                                                                     V
由此

                                   -2-
A                                                                            A
                                                            nd
                NEW WORLD DEVELOPMENT CO LTD               2 Defendant
B                                                                            B
                           (By Counterclaim)
C                               ____________                                 C


D    AND                                                                     D

                                                       HCA 2915/2002
E                                                                            E

                   IN THE HIGH COURT OF THE
F                                                                            F
           HONG KONG SPECIAL ADMINISTRATIVE REGION
G                   COURT OF FIRST INSTANCE                                  G

                      ACTION NO. 2915 OF 2002
H                                                                            H
                (transferred from DCCJ No. 1967 of 2002)
I                            ____________                                    I


J    BETWEEN                                                                 J


K           BEIJING CHONGWEN-NEW WORLD PROPERTIES                            K
                  DEVELOPMENT COMPANY LIMITED   1st Plaintiff
L                                                                            L
             CHINA NEW WORLD ELECTRONICS LIMITED 2nd Plaintiff
M                                                                            M
                                  and
N                                                                            N
                                                            st
                        HO YUK WAH, DAVID                  1 Defendant
O                                                                            O
                        HO YUK KUEN, JADE                  2nd Defendant
P
                       CHAN MAN HO, BRIAN                  3rd Defendant     P


Q                         (By Original Action)                               Q

                             ____________
R                                                                            R

     AND BETWEEN
S                                                                            S

                        HO YUK WAH, DAVID                    1st Plaintiff
T                                                                            T
                                                                 nd
                        HO YUK KUEN, JADE                    2 Plaintiff
U                                                                            U


V                                                                            V
由此

                                         -3-
A                                                                                    A
                                                                      rd
                             CHAN MAN HO, BRIAN                      3 Plaintiff
B                                                                                    B
                          DAVID Y W HO & CO (a Firm)                 4th Plaintiff
C                                                                                    C
                                         and
D                                                                                    D

               BEIJING CHONGWEN-NEW WORLD PROPERTIES
E
                     DEVELOPMENT COMPANY LIMITED    1st Defendant                    E


F               CHINA NEW WORLD ELECTRONICS LIMITED 2nd Defendant                    F

                     NEW WORLD DEVELOPMENT CO LTD                    3rd Defendant
G                                                                                    G
                                 (By Counterclaim)
H                                                                                    H
                                   ____________
I                                                                                    I
          (Consolidated by Order of Master Woolley dated 31 October 2003)
J                                                                                    J
     Before: Hon Saunders J in Chambers
K    Date of Hearing: 15 January 2010                                                K

     Date of Decision: 2 February 2010
L                                                                                    L

                          __________________________
M                                                                                    M
                          DECISION ON COSTS
N                         ___________________________                                N


O                                                                                    O

     Background
P                                                                                    P


Q    1.           In both actions the plaintiffs sought to recover sums of money     Q

     in the way of payments made by purchasers of properties in the Beijing
R                                                                                    R
     and Dongguan developments that had been held by the Firm in their
S    capacity as the solicitors for the developers but applied, by deduction, by     S

     the Firm against outstanding legal fees allegedly owed. In both actions the
T                                                                                    T


U                                                                                    U


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由此

                                           -4-
A                                                                                     A
     Firm counterclaimed for the amount due for legal fees in accordance with
B                                                                                     B
     bills rendered.

C                                                                                     C
     2.            The reasons for judgment were handed down on 18 September
D                                                                                     D
     2009.    In short, I found for the Firm in both actions, accepting their
E    entitlement to have made the deductions, and for the Firm on the                 E
     counterclaim against the original developers in the Beijing action, but for
F                                                                                     F
     NWD on both counterclaims.
G                                                                                     G
     3.            Costs orders nisi were made in the following terms:
H                                                                                     H
             (a) the costs of both actions to the Firm, on a party and party basis;
I                                                                                     I
             (b)   20% of the costs of NWD in both counterclaims to be paid by
J                  the Firm.                                                          J


K                                                                                     K
     4.            Mr Pow, for Sun Legend and NWD, now says that Sun
L    Legend is entitled to judgment on the counterclaim in the Dongguan action        L

     because, as an assignee from the original developers of the debt allegedly
M                                                                                     M
     owed by the Firm to the original developers, it cannot be liable on the
N    counterclaim. He says further, that as Sun Legend is entitled to judgment        N

     on the counterclaim in the Dongguan action, it must also be entitled to
O                                                                                     O
     costs on that counterclaim.
P                                                                                     P

     5.            He next says that the orders for costs to NWD on both
Q                                                                                     Q
     counterclaims should not be limited to 20%, but should be simply the usual
R    orders to which a successful party is entitled for costs, with the Taxing        R

     Master undertaking the appropriate apportionment.          Mr Szeto, while
S                                                                                     S
     arguing there should be no costs to NWD on the counterclaims, was
T
     content to accept my apportionment of 20%.                                       T


U                                                                                     U


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由此

                                                        -5-
A                                                                                                                 A
     The procedural steps:
B                                                                                                                 B

     6.               The Dongguan action was originally commenced by 東莞市
C                                                                                                                 C
     東城區房地產開發公司, New World Sun City Ltd, and Dongguan New
D                                                                                                                 D
     World Garden Trade Construction Co Ltd, (collectively, the original
E    plaintiffs), the first two of those three parties being the shareholders in                                  E
     Dongguan New World Garden Trade Construction Co Ltd, which in turn
F                                                                                                                 F
     was the joint-venture company used to carry out the Dongguan project.
G                                                                                                                 G
     7.               The funds held by the Firm, which were applied to part
H                                                                                                                 H
     payment of solicitors fees claimed by the Firm, were the property of those
I    three companies. The instructions given to the Firm to act in respect of the                                 I

     Dongguan project, it was found in the trial, came from those three
J                                                                                                                 J
     companies. Consequently, it was those three companies who were, at law,
K    liable to the Firm for the solicitors fees incurred.                                                         K


L                                                                                                                 L
     8.               The writ in the Dongguan action was issued on 28 March
M    2002, and the statement of claim was filed on 30 April 2002. A defence to                                    M

     the statement of claim was filed by the Firm1on 10 June 2002. In that
N                                                                                                                 N
     defence the Firm asserted (para 18) a right to set-off against any fees due,
O    funds held on behalf of the original plaintiffs, pursuant to Rules 7 of the                                  O

     Solicitors Accounts Rules Cap 159.
P                                                                                                                 P


Q    9.               On 26 October 2002, the original plaintiffs assigned the                                    Q

     benefit of the Dongguan action to Sun Legend. In effect, the original
R                                                                                                                 R
     plaintiffs assigned to Sun Legend the right to any monies that had been
S    held by the Firm on behalf of the original plaintiffs.                                                       S


T                                                                                                                 T
     1
      At the time at which the defence was filed the defendants were the individual partners of the Firm, the
     Firm itself being joined at a later date. Nothing turns on this distinction, and the collective expression
U    “the Firm” remains appropriate.
                                                                                                                  U


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由此

                                                            -6-
A                                                                                                                A
     10.                 On 16 December 2002, upon an ex parte application by the
B
     original plaintiffs, Sun Legend was substituted as the plaintiff, presumably2                               B


C    pursuant to O 15 r 7(2), which provides:                                                                    C

                         “Where at any stage of the proceedings in any cause or matter
D                        the interest or liability of any party is assigned or transmitted to                    D
                         or devolves upon some other person, the Court may, if it thinks it
E
                         necessary in order to ensure that all matters in dispute in the
                                                                                                                 E
                         cause or matter may be effectually and completely determined
                         and adjudicated upon, order that other person to be made a party
F                        to the cause or matter and the proceedings to be carried on as if                       F
                         he had been substituted for the first mentioned party.
G                         An application for an order under this paragraph may be made ex                        G
                          parte.”
H                                                                                                                H
     11.                 There is no suggestion that Sun Legend did not duly serve the
I                                                                                                                I
     order as required by O 15 r7(4). By O15 r 7(5), the Firm was entitled,
J    should they have wished to dispute the substitution of the plaintiffs, to                                   J

     apply for discharge or variation of the ex parte order, that application being
K                                                                                                                K
     required to be made within 14 days after service of the order. No such
L    application was made.                                                                                       L


M                                                                                                                M
     12.                  Nearly five years after Sun Legend was substituted as
N    plaintiff, on 30 November 2007, the Firm amended its defence, and filed a                                   N

     counterclaim, naming as defendants to that counterclaim Sun Legend and
O                                                                                                                O
     NWD. The counterclaim was for the total amount of the bills rendered.
P    The basis for the entitlement to claim the amount due was pleaded by                                        P

     repeating the allegations in the defence, and asserting that by virtue of
Q                                                                                                                Q
     those allegations the sum was due by the defendants to counterclaim, and,
R    by way of alternative, a quantum meruit.                                                                    R


S                                                                                                                S


T                                                                                                                T

     2
U        I say presumably, because the papers do not identify a specific rule relied upon for the application.
                                                                                                                 U


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由此

                                           -7-
A                                                                                      A
     13.          On 16 January 2008, Sun Legend re-amended a re-amended
B                                                                                      B
     Reply, the document constituting a Re-Re-amended Reply. At the same

C    time Sun Legend took the opportunity to file a defence to the counterclaim,       C
     that defence constituting a bare denial.
D                                                                                      D


E    14.          NWD, although it had been joined in the action as a                  E
      nd
     2 Defendant by counterclaim, did not file any defence.
F                                                                                      F


G    15.          The document comprising the Re-Re-Amended Reply and                  G
     Defence to Counterclaim filed was incorrectly titled, completely omitting
H                                                                                      H
     that portion of the title relating to the counterclaim, notwithstanding that it
I    included a defence to the counterclaim. In its terms, it referred only to Sun     I

     Legend as making the assertions in the defence.      No point was taken as to
J                                                                                      J
     either of these points at trial, and I assume the parties treated the defence
K    that was filed by Sun Legend as being a defence to the counterclaim by            K

     both Sun Legend and NWD.
L                                                                                      L


M    16.          Sun Legend did not plead, or raise in argument during the trial,     M

     the proposition that as an assignee of the debt it could not be liable on the
N                                                                                      N
     counterclaim for the fees due.
O                                                                                      O


P    The consequences of the assignment:                                               P


Q    17.          The law is that, whether an assignment is legal or equitable,        Q

     (in this case it was a legal assignment), the assignee takes the benefit of the
R                                                                                      R
     assignment subject to equities having priority over the rights of the
S    assignee. Thus, the assignee of a chose in action cannot acquire a better         S


T
     right than the assignor had, and the assignee takes a chose in action subject
                                                                                       T
     to all the equities affecting it in the hands of the assignor which are in
U                                                                                      U


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由此

                                              -8-
A                                                                                        A
     existence before notice is received by the debtor: see Snell’s Equity para 3-
B                                                                                        B
     22. The effect of this rule is that the assignee of a debt takes the rights to

C    the debt subject to any equitable right of set-off that might exist at the time     C
     of the assignment.
D                                                                                        D


E    18.          But, with certain exceptions which are not relevant here, (for         E
     which see para 30 below), the assignee does not take the debt subject to
F                                                                                        F
     any burden there might be on the creditor. In this respect the distinction
G    between set-off and counterclaim becomes important. While a set-off will            G
     invariably constitute a counterclaim, a counterclaim will not always
H                                                                                        H
     constitute a set-off.
I                                                                                        I

     19.          The following passage from Halsbury’s Laws of England,
J                                                                                        J
     5th Edn Vol.11 para 641 sets out the distinction between set-off and
K    counterclaim:                                                                       K

                  “Set-off is distinguishable from counterclaim both in its
L                                                                                        L
                  application and in its effect. In its application set-off is limited
                  to money claims, whereas counterclaim is not so limited. Any
M                 claim in respect of which the defendant could bring an                 M
                  independent claim against the claimant may be enforced by
                  counterclaim subject only to the limitation that it must be such as
N                 can conveniently be tried with the claimant’s claim. Thus not          N
                  only claims for money, but also other claims such as a claim for
O                 an injunction or for specific performance or for a declaration
                                                                                         O
                  may be the subject of a counterclaim.

P                 In its effect set-off is essentially different from counterclaim in    P
                  that set-off is a ground of defence, a shield and not a sword,
                  which, if established, affords an answer to the claimant’s claim
Q                                                                                        Q
                  wholly or pro tanto, whereas counterclaim as such affords no
                  defence to the claimant’s claim, but as a weapon of offence
R                 which enables a defendant to enforce a claim against the               R
                  claimant as effectually as in an independent action. Where facts
                  pleaded by way of counterclaim constitute a set-off they may be
S                 additionally pleaded as such.”                                         S


T                                                                                        T


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由此

                                               -9-
A                                                                                         A
     20.          The position is neatly illustrated by the following example in
B
     Snell’s Equity para 3-26:                                                            B


C                 “Thus where a builder assigned the amounts due to him under a           C
                  building contract, the debtor (the owner of the building) was
                  entitled to set off a claim in respect of defects in the building but
D                                                                                         D
                  he was not entitled to counterclaim against the assignee for
                  damages.”
E                                                                                         E
     Snell cites Young v Kitchen (1878) 3 Ex D 127 as authority, and refers also
F                                                                                         F
     to Pan Ocean Shipping Co Ltd v Creditcorp Ltd [1994] 1 WLR 161 as

G
     another illustration of the rule in practice.
                                                                                          G


H                                                                                         H
     21.          In these proceedings, by the counterclaim, the Firm sought

I    from Sun Legend a debt due, said to be arising as a result of a retainer of          I
     solicitors, or alternatively a quantum meruit. The Firm did not dispute that
J                                                                                         J
     funds held by them, received from purchasers of properties in the
K    developments were the property of the original developers. The Firm                  K
     justified its appropriation of those funds by reliance upon Rule 7 of the
L                                                                                         L
     Solicitors Accounts Rules.
M                                                                                         M

     The argument by the Firm for liability of Sun Legend:
N                                                                                         N


O    22.          Mr Szeto, for the Firm, makes two arguments to say that Sun             O

     Legend is liable.
P                                                                                         P


Q    23.          First he says that Sun Legend is liable, not because of the             Q

     assignment, but because of the consequences of the application made and
R                                                                                         R
     the effect of the subsequent order for substitution. He relies upon the
S    following passage in Hong Kong Civil Procedure 2010 Vol 1 15/8/7, from               S

     the commentary on O 15 r 8, that Rule being entitled: “Provisions
T                                                                                         T
     consequential on making an order under rule 6 or 7”:
U                                                                                         U


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由此

                                             - 10 -
A                                                                                       A
                  “Once the substituted person becomes a party in the action, the
B                 following consequences ensue namely:
                                                                                        B
                       (1)   the substituted party is placed on the exact position of
C                            the party whom he has replaced (Chorlton v Dickie          C
                             (1879) 13 Ch D 160; Johnston v English (1886) 55
                             LT 55; Cockshott v London etc Co (1878) L J Ch
D                            120)”                                                      D


E                                                                                       E
     24.         The argument made was that the effect of the substitution
F    order was that that order rendered Sun Legend liable in all respects,              F

     including any burdens there might have been on an original party. That,
G                                                                                       G
     said Mr Szeto, followed from the use of the words: “the exact position of
H    the party whom he has replaced”.                                                   H


I                                                                                       I
     25.         I reject the argument.         The three authorities cited are all
J                                                                                       J
     authorities on procedure and practice points. What is clear from those

K
     authorities is that if any procedural step has been taken prior to the
                                                                                        K
     assignment, for example, service of documents or notice of some act, that
L                                                                                       L
     procedural step is effectual against the substituted party and need not be

M    repeated. Mr Szeto’s argument requires that a substantive rule of law, that
                                                                                        M
     an assignee takes subject to equities, but not the burdens of the creditor,
N                                                                                       N
     has been amended by a rule of procedure contained in the High Court
O    Rules. That is plainly not the case.                                               O


P                                                                                       P
     26.         The second argument made was that Sun Legend was liable on
Q    a quantum meruit. But the argument advances his position no further.               Q
     Quantum meruit is part of the law of restitution which prevents a person
R                                                                                       R
     from obtaining a benefit from another which it is against conscience that
S    he should keep without payment. The party liable on a quantum meruit is            S

     the party for whom work is done, and who has not paid for that work,
T                                                                                       T


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由此

                                          - 11 -
A                                                                                      A
     whether because the contract for the work has been terminated by breach,
B                                                                                      B
     or for some other reason a contract has not come into existence.

C                                                                                      C
     27.          I cannot see any basis at all upon which it might be argued
D                                                                                      D
     that Sun Legend, as the mere assignee of a debt due, might be said to have
E    been the beneficiary of the work done by the solicitors. This argument            E
     must fail also.
F                                                                                      F


G    28.          Mr Pow is right. Sun Legend are entitled to judgment on the          G
     counterclaim.
H                                                                                      H


I    29.          There are certain limited circumstances where it is arguable         I

     that where it is a condition of enjoying the benefit of that which is assigned,
J                                                                                      J
     then unless a burden is assumed, the assignee cannot enjoy the benefit
K    without discharging the burden. By way of example, in Halsall v Brizell           K

     [1957] Ch 169, a right to use estate roads and sewers was conditional upon
L                                                                                      L
     payment of the proportion of maintenance of those facilities. The assignee
M    of the right was held liable to the owner for that compensation. That             M

     decision was approved in the House of Lords in Rhone v Stevens [1994]
N                                                                                      N
     2 AC 310 at 322.
O                                                                                      O

     30.          Although an assignee takes subject to a cross-demand
P                                                                                      P
     available to the debtor against the assignor only if the cross-demand would
Q    have been available as a set-off as between the assignor and the debtor,          Q

     there are arguments available to say that that is not always the case. In
R                                                                                      R
     Bank of Boston Connecticut v European Grain and Shipping Ltd [1989]
S    1 AC 1056 Lord Brandon formulated the test by reference to whether the            S


T
     defendant’s counterclaim could be characterised as “flowing out of and
                                                                                       T
     inseparably connected with the dealings and transactions which also give
U                                                                                      U


V                                                                                      V
由此

                                          - 12 -
A                                                                                     A
     rise to” the claimant’s claim. The issue is discussed at length in The Law
B
     of Set-off, 3rd Edn, Derham, (OUP) see paras 17.05-17.09. It is possible to      B


C    conceive of such a formulation in the present case, on the part of the Firm,     C
     but as no such argument was made I say nothing more about the matter
D                                                                                     D
     other than to indicate the possible availability of the argument.
E                                                                                     E

     The position of Sun Legend:
F                                                                                     F


G    31.         Sun Legend neither pleaded, nor argued at trial, the limits of       G
     the liability it faced as an assignee. As I have stated at paragraph 14 above,
H                                                                                     H
     the defence filed by Sun Legend to the counterclaim amounted to nothing
I    more than a bare denial.      In fact, as an entity, in the course of the        I

     consideration of the case, Sun Legend did not feature except to the extent
J                                                                                     J
     that its presence as an assignee was noted. The argument in relation to the
K    counterclaim in the Dongguan action was restricted entirely to the liability     K

     of NWD.
L                                                                                     L


M    32.         It would have been open to Sun Legend to have defended the           M

     counterclaim on the basis that at law it could not have been liable for the
N                                                                                     N
     debt claimed. Indeed, having regard to the substantive law, and that the
O    only issue was a pure legal issue, it would have been open to Sun Legend         O

     to have sought summary judgment on the counterclaim under O 14A. This
P                                                                                     P
     was arguably a clear case for the application of that Order. But Sun
Q    Legend were apparently not advised to take that step.                            Q


R                                                                                     R
     33.         Equally, had the Firm wished to pursue the counterclaim
S    against the original plaintiffs they would have been entitled, within the        S


T
     required time, to apply to discharge the ex parte order substituting Sun
                                                                                      T
     Legend as plaintiff. Had they done so it is entirely likely that the original
U                                                                                     U


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由此

                                              - 13 -
A                                                                                        A
     plaintiffs would have remained plaintiffs in the action for the purposes of
B                                                                                        B
     the counterclaim, and Sun Legend would have been joined as a plaintiff to

C    pursue its rights under the assignment. But the Firm were apparently not            C
     advised to take that step.
D                                                                                        D


E    Costs in the proceedings:                                                           E


F                                                                                        F
     34.          It is now necessary to examine the consequences of the
G    foregoing circumstances and conclusions in respect of orders for costs in           G
     the proceedings.
H                                                                                        H


I    35.          The starting point, and the position of Mr Pow, is set out in the      I

     following passage from The Law of Set-off, para 1.06:
J                                                                                        J
                  “The distinction between set-off and counterclaim is relevant to
                  the question of costs. Costs are within the discretion of the court,
K                                                                                        K
                  but the general rule is that the successful party pays the costs of
                  the unsuccessful party. Since a setoff gives rise to a defence, it
L                 follows that if the defendant’s cross-claim the subject of the set-    L
                  off exceeded the claimant’s claim, the defendant will have
                  succeeded in defending the action, and accordingly the defendant,
M                                                                                        M
                  rather than the claimant, ordinarily would be entitled to an order
                  for costs. A counterclaim on the other hand ordinarily results in
N                 two judgments. The approach of the courts usually has been that        N
                  the claimant is entitled to the costs of this claim, if successful,
                  and the defendant has awarded the costs of the successful
O                 counterclaim. The circumstances of the particular case may             O
                  warrant different orders, but these are the prima facie positions.”
P                                                                                        P

     36.          Just as in England, in Hong Kong costs are within the
Q                                                                                        Q
     discretion of the court, but the general rule is that the successful party pays
R    the costs of the unsuccessful party: see O 62 r 3 and Hong Kong Civil               R

     Procedure 2010, Vol 1 paras 62/2/6 and 62/3/3.
S                                                                                        S


T
     37.          The only basis that Sun Legend can be said to have relied              T


U
     upon to entitle the original plaintiffs to recover the funds that had been
                                                                                         U


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由此

                                          - 14 -
A                                                                                     A
     deducted by the Firm was that there was no contractual relationship
B                                                                                     B
     entitling the Firm to legal fees as they asserted. That argument failed, and

C    the Firm was found entitled to the set-off. In that respect I accept Mr          C
     Szeto’s submission that the judgment on the counterclaim is in reality
D                                                                                     D
     merely declaratory, reciting the correct legal result and the facts as found
E    by the Court in dismissing the claim.                                            E


F                                                                                     F
     38.           Further, Sun Legend resisted the counterclaim, joining in the
G    argument that there was no obligation on the part of the original developers     G
     in both actions by way of quantum meruit. This argument failed, although
H                                                                                     H
     in the case of the Dongguan action, in the absence of the original plaintiffs
I    in the proceedings no judgment could be entered against them for the             I

     balance due by way of legal fees having regard to the set-off that had been
J                                                                                     J
     applied.
K                                                                                     K

     39.           In all of those circumstances, exercising my discretion, I am
L                                                                                     L
     satisfied that the proper order for costs is that the Firm must have its costs
M    on the claim, and Sun Legend is entitled to judgment on the counterclaim         M

     together with costs to the date upon which the defendant’s Hearsay Notice
N                                                                                     N
     was filed, those costs to be taxed on a party and party basis.. In other
O    words, Sun Legend gets its costs for the procedural steps prior to trial, but    O

     not for the trial itself.
P                                                                                     P


Q    40.           Mr Pow said that NWD should have the whole of its costs on         Q

     both counterclaims. He referred me to O 62 r 7 and to the decisions in
R                                                                                     R
     Beaumont v Senior & Bull [1903] 1 KB 282 and Korner v H Korner & Co
S    Ltd [1951] 1 Ch 10. Upon these authorities he advanced the argument that         S


T
     the allocation of the costs was a matter that was best left to the Taxing
                                                                                      T
     Master.
U                                                                                     U


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由此

                                          - 15 -
A                                                                                     A
     41.         The cause of action in which the Firm succeeded was a cause
B                                                                                     B
     of action against the original developers, all effectively subsidiaries of, or

C    at least represented by NWD. Because of the relationship between the             C
     original developers, Sun Legend and NWD, they were all represented by
D                                                                                     D
     the same solicitors and counsel. Having regard to the time spent on trial
E    on the NWD liability issue, it seemed to me to be appropriate to limit the       E
     costs to NWD on the counterclaim to 20% of those costs. That was a
F                                                                                     F
     generous apportionment of the time.
G                                                                                     G
     42.         I have had careful regard to Mr Pow’s argument that the
H                                                                                     H
     matter is best left to the Taxing Master, but I am not persuaded that that is
I    so in the present case. The order that I have made reflects the proportion       I

     of the trial taken up in respect of the counterclaim. The real argument
J                                                                                     J
     mounted by NWD was that its subsidiaries had not reached any agreement
K    with the Firm in respect of fees. That argument failed.                          K


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     43.         Accordingly, the order nisi that NWD will be entitled to 20%
M    of the costs on the counterclaim, to be taxed on the party and party basis, is   M

     made absolute.
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S                                                      (John Saunders)                S
                                             Judge of the Court of First Instance
T
                                                          High Court
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由此

                                        - 16 -
A                                                                                 A
     Mr Jason Pow SC and Mr Samuel Wong instructed by Messrs Li Wong
B        Lam & W I Cheung, for the Plaintiff (by original action) and the         B
         Defendants (by counterclaim) in HCA 1212 of 2002 and the Plaintiffs
C        (by original action) and the Defendants (by counterclaim) in HCA         C
         2915 of 2002
D                                                                                 D
     Mr Patrick Szeto, instructed by Messrs Wilkinson & Grist, for the
        Defendants (by original action) and the Plaintiffs (by counterclaim) in
E
        HCA 1212 of 2002 and the Defendants (by original action) and the          E
        Plaintiffs (by counterclaim) in HCA 2915 of 2002
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